Hirsch v. Fortner ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-40682
Summary Calendar
LARRY DWAYNE HIRSCH,
Plaintiff-Appellant,
versus
DAVID FORTNER, Physician Assistant, Powledge Unit;
KENNETH LOVE, MD, Powledge Unit; DR. UNIDENTIFIED GREZULA,
Orthro-Specialist, Galveston Hospital; WARDEN UNIDENTIFIED
BLEVINS, Warden, Powledge Unit,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:04-CV-42
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Larry Dwayne Hirsch, former Texas prisoner # 1070146,
appeals from the dismissal of his 42 U.S.C. § 1983 suit. See 28
U.S.C. § 1915A. Under § 1915A(b)(1), a district court is to
review a prisoner’s complaint and to dismiss the complaint if it
“is frivolous, malicious, or fails to state a claim upon which
relief may be granted.” § 1915A(b)(1). This court reviews
*
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this opinion should not be published and is not precedent except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.
No. 05-40682
-2-
dismissals under § 1915A de novo. See Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005).
Hirsch argues that Physician Assistant Fortner, Dr. Love,
Warden Blevins, Dr. Stovo, Dr. Reimer, and Dr. Murray were
deliberately indifferent to his serious medical needs. Hirsch
has failed to demonstrate that the defendants were deliberately
indifferent to a serious medical need. See Domino v. Texas Dep't
of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). To the
extent that Hirsch sued Dr. Love, Warden Blevins, Dr. Stovo,
Dr. Reimer, and Dr. Murray in their supervisory capacities,
Hirsch has not shown the defendants’ personal involvement in a
constitutional deprivation. See Thompkins v. Belt, 828 F.2d 298,
303-04 (5th Cir. 1987).
Hirsch argues that the magistrate judge prevented him from
filing an amended complaint. A Spears** hearing is “in the
nature of an amended complaint or a more definite statement.”
Adams v. Hansen, 906 F.2d 192, 194 (5th Cir. 1990). At the
Spears hearing, the magistrate judge allowed Hirsch to amend his
complaint orally, which he did, adding three defendants. Hirsch
does not suggest that he attempted to file an amended complaint
after the hearing. Hirsch also argues that the magistrate judge
should have appointed a medical expert prior to dismissing his
claims, but Hirsch has not demonstrated that expert testimony was
warranted prior to the dismissal as frivolous under § 1915A.
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 05-40682
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Hirsch does not challenge the district court’s order, stayed
pending appeal, severing and transferring his claims against Dr.
Grezula. By failing to address the district court’s order
severing and transferring his claims against Dr. Grezula, Hirsch
has abandoned the issue for purposes of appeal. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
Accordingly, the judgment of the magistrate judge is
AFFIRMED. Any other requested relief is DENIED.