Sims v. Dretke , 212 F. App'x 276 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-51200
Summary Calendar
GARY EUGENE SIMS,
Plaintiff-Appellant,
versus
DOUG DRETKE, Director, Correctional Institutional Division; VILL
ERILL, Unit Warden; UNIVERSITY OF TEXAS MEDICAL BRANCH; SHIELA
PIEPRZYCO; ROMEO ROJAS, Doctor,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
(5:05-CV-129)
Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gary Eugene Sims, Texas prisoner # 1029968, contests the
dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(i)-(ii) as frivolous and for failure to state a
claim. He also moves for the appointment of counsel.
Sims, who is HIV positive, contends: the defendants have been
deliberately indifferent to his medical needs by, inter alia,
*
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this opinion should not be published and is not precedent except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.
denying him medication for HIV treatment; and they are engaged in
a “conspiracy to let [him] die”.
Because the district court’s dismissal was based on the
complaint’s both being frivolous and failing to state a claim, our
review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th
Cir. 2005); Harper v. Showers, 174 F.3d 716, 718 & n.3 (5th Cir.
1999). As the district court noted, the United States Department
of Health and Human Services has stated an HIV-positive individual
need not necessarily undergo anti-HIV treatment; whether to undergo
such treatment depends on an individual’s medical assessments and
particular circumstances. Sims admits being medically examined on
numerous occasions, but disagrees with his diagnosis and course of
treatment. Such disagreement, standing alone, is insufficient to
state a claim under § 1983. See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991); see also Banuelos v. McFarland, 41 F.3d 232,
235 (5th Cir. 1995). Sims’ conclusory allegation of a conspiracy
is also insufficient to establish such a claim. See Wilson v.
Budney, 976 F.2d 957, 958 (5th Cir. 1992).
Because this case does not present exceptional circumstances,
Sims’ motion for appointment of counsel is denied. Akasike v.
Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994).
AFFIRMED; MOTION DENIED
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