Gregory Robinson v. William Stephens ( 2018 )

Case: 17-40523 Document: 00514503031 Page: 1 Date Filed: 06/06/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-40523
Fifth Circuit
FILED
Summary Calendar June 6, 2018
Lyle W. Cayce
GREGORY ALLEN ROBINSON, Clerk
Plaintiff-Appellant
v.
WILLIAM STEPHENS; DEBBIE RINEHART; GURNEY UNIT; PROVIDER
SIENTZ; KAREN SEITZ,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:16-CV-485
Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
Gregory Allen Robinson, Texas prisoner # 1924476, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 civil suit after it granted the motion
to dismiss filed by defendants Debbie Rinehart and Karen Seitz. Liberally
construed, he asserts that the district court erred in dismissing his claims that
Rinehart and Seitz were deliberately indifferent to his medical needs while he
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-40523 Document: 00514503031 Page: 2 Date Filed: 06/06/2018
No. 17-40523
was housed at the Gurney Unit. In his complaint, Robinson had alleged that
Rinehart and Seitz failed to follow discharge orders issued by Palestine
Regional Medical Center, which included providing prescribed pain medication
to Robinson for an ankle injury.
The district court dismissed the official-capacity claims against the
defendants pursuant to Federal Rule of Civil Procedure 12(b)(1), and it
dismissed the individual-capacity claims pursuant to Federal Rule of Civil
Procedure 12(b)(6). We review the grant of a motion to dismiss under either
rule de novo. Childers v. Iglesias, 848 F.3d 412, 413 (5th Cir. 2017) (Rule
12(b)(6)); Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th Cir. 2005)
(Rule 12(b)(1)).
Aside from making the conclusional assertion that he stated a sufficient
deliberate indifference claim under the Eighth Amendment, Robinson does not
make any reference to or arguments concerning the district court’s specific
reasons for granting the motion to dismiss. Because Robinson offers no basis
to disagree with the district court’s analysis, any challenges to the grant of the
Rule 12(b)(1) and Rule 12(b)(6) motion are deemed abandoned on appeal. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas
Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
In addition, Robinson claims in his appellate brief that he was prevented
from conducting discovery and that the defendants tampered with evidence.
However, he was not entitled to discovery prior to the disposition of the Rule
12(b)(6) motion. See Southwestern Bell Tel., LP v. City of Houston, 529 F.3d
257, 263 (5th Cir. 2008). Further, he has not shown that any requested
discovery was “likely to produce the facts needed to withstand a Rule 12(b)(1)
motion.” Freeman v. United States, 556 F.3d 326, 342 (5th Cir. 2009).
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No. 17-40523
The judgment of the district court is AFFIRMED. The district court’s
partial dismissal of Robinson’s complaint for failure to state a claim counts as
a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387 (5th Cir. 1996). Robinson is WARNED that if he accumulates three
strikes, he will not be able to proceed in forma pauperis in any civil action or
appeal while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
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