Allen v. Morgan ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 17, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-30864
Summary Calendar
DERRICK JEROME ALLEN,
Plaintiff-Appellant,
versus
MARY MORGAN; DETENTION CENTER TENSAS PARISH,
Medical Department; DEBRA WOODARD; EUGENE PARKER;
ROBERT GAINES; PHILLIP MATTHEWS,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(00-CV-91)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Derrick Jerome Allen, Louisiana prisoner # 295151, appeals,
pro se, the dismissal of his 42 U.S.C. § 1983 action as frivolous
and award of summary judgment in favor of the appellees.
(Allen’s motion for appointment of counsel is DENIED.)
We review a summary judgment de novo. E.g., Melton v.
Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir.
*
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this opinion should not be published and is not precedent except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.
1997). Summary judgment is proper if the pleadings and summary
judgment evidence present no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law. See
FED. R. CIV. P. 56(c).
Allen contends he was denied adequate medical care for a bad
sinus attack and that the Tensas Parish Detention Center does not
provide medical care on weekends or on weekdays after 11 p.m.
Allen acknowledged that Nurse Morgan examined him on December 9 and
10 December, 1999, and gave him enough cold medication to last
through the upcoming weekend. The fact that he was not examined
when he made another sick call request on the following Monday does
not establish that Nurse Morgan was deliberately indifferent to his
serious medical needs. See Norton v. Dimazana, 122 F.3d 286, 292
(5th Cir. 1997). Allen has not shown that he suffered a specific
injury as a result of the alleged denial of medical care or the
lack of medical care on weekends or on weekdays after 11 p.m.
Allen maintains Warden Parker and Nurse Morgan retaliated
against him for filing a grievance against Nurse Morgan by changing
his job and removing his trustee status. Allen has not produced
direct evidence of the claimed retaliatory motivation or “allege[d]
a chronology of events from which retaliation may plausibly by
inferred”. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995),
cert. denied, 516 U.S. 1084 (1996).
2
Allen contends he was exposed to second-hand smoke in
the infirmary which aggravated his sinus problem and cough.
Because Allen’s sporadic and fleeting exposure to environmental
tobacco smoke (ETS) did not constitute unreasonably high levels of
ETS, the district court did not err in granting summary judgment
and dismissing this claim as frivolous. See Richardson v.
Spurlock, 260 F.3d 495, 498 (5th Cir. 2001).
Allen alleges that his privacy rights were violated when Nurse
Morgan questioned him about his health problems in front of other
inmates in the infirmary and as a result he suffered embarrassment.
Because Allen has not shown that he suffered a specific physical
injury as a result of the alleged denial of medical care or the
alleged privacy violation, the district court did not err in
granting summary judgment and dismissing this claim as frivolous.
See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (Prison
Litigation Reform Act requires physical injury before a prisoner
can recover for psychological damages).
Allen’s appeal is without arguable merit and, therefore, it is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2. The district court’s dismissal
of this action as frivolous and this court’s dismissal of this
appeal as frivolous both count as “strikes” under 28 U.S.C. §
1915(g). Allen is cautioned that, if he accumulates three strikes
under 28 U.S.C. § 1915(g), he may not proceed in forma pauperis in
3
any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is in imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED
4