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Marlin v. Alexandre ( 2007 )


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  •          IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 15, 2007
No. 06-30838
Summary Calendar             Charles R. Fulbruge III
Clerk
MICHAEL D MARLIN
Plaintiff-Appellant
v.
JOEL D ALEXANDRE; SCARLET LUSK; MISS FONTENOT; WARDEN
FEDERAL CORRECTIONAL INSTITUTION OAKDALE LOUISIANA
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:05-CV-1947
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Michael D. Marlin, federal prisoner # 08387-003, appeals the district
court’s dismissal of his Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics,
    403 U.S. 388 
    (1971), complaint in which he raised deliberate
indifference claims pursuant to the Eighth Amendment and claims pursuant to
the Americans with Disabilities Act (ADA). Marlin reasserts his arguments on
*
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should not be published and is not precedent except under the limited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. 06-30838
appeal. He has also filed a motion to amend his brief to present “new evidence”
in support of his deliberate indifference claims.
The district court dismissed Marlin’s deliberate indifference claims as
frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
and (ii).   This court reviews the dismissal of a complaint pursuant to
§ 1915(e)(2)(B)(i) as frivolous for abuse of discretion; however, a dismissal for
failure to state a claim pursuant to § 1915(e)(2)(B)(ii) is reviewed de novo.
Geiger v. Jowers,
    404 F.3d 371
    , 373 (2005); Harris v. Hegmann,
    198 F.3d 153
    ,
156 (5th Cir. 1999). Because the district court dismissed the claims pursuant to
both subsections, our review is de novo. See
    Geiger, 404 F.3d at 373
    .
At most, Marlin’s argument is a disagreement with the treatment he
received for his medical condition or an incorrect diagnosis on the part of the
prison medical personnel, both of which are insufficient to raise an issue of
material fact on a claim of deliberate indifference. See Varnado v. Lynaugh,
    920 F.2d 320
    , 321 (5th Cir. 1991);
    Johnson, 759 F.2d at 1238
    . Accordingly, Marlin
has failed to show that the district court erred in dismissing his deliberate
indifference claims for failure to state a claim on which relief may be granted.
Marlin contends that the defendants also violated the ADA. The Bureau
of Prisons is an agency of the Department of Justice, which is within the
executive branch of the government. See United States v. Bourgeois,
    423 F.3d 501
    , 509 (5th Cir. 2005).     Consequently, the district court did not err in
dismissing Marlin’s ADA claims against Dr. Alexandre and Miss Fontenot on the
basis that the ADA is not applicable to the federal government. See 42 U.S.C.
§ 21111(5)(B); Henrickson v. Potter,
    327 F.3d 444
    , 447 (5th Cir. 2003). The
dismissal of Marlin’s ADA claim against Scarlet Lusk, however, is affirmed
because it is duplicative of a claim raised in case no. 2:05-cv-2172, which is
pending before the district court on remand from this court. See Marlin v.
Young, No. 06-30663 (5th Cir. August 8, 2007) (unpublished); Bailey v. Johnson,
    846 F.2d 1019
    , 1021 (5th Cir. 1988).
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No. 06-30838
Accordingly, Marlin’s motion to amend his brief is GRANTED; the
judgment of the district court is AFFIRMED.
3