Daniels v. Dallas County , 342 F. App'x 1 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2009
No. 08-10476
Summary Calendar Charles R. Fulbruge III
Clerk
JAMES EDWARD DANIELS
Plaintiff-Appellant
v.
DALLAS COUNTY; DALLAS COUNTY HOSPITAL DISTRICT; UNIVERSITY
OF TEXAS MEDICAL BRANCH; MD STEPHEN P BOWERS; LEAH LUCIE
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-1739
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
James Edward Daniels, Texas prisoner # 1409320, moves to appeal in
forma pauperis (IFP) from the summary judgment dismissal of his civil rights
claims against Dallas County, Texas; the Dallas County Hospital District
(DCHD); the University of Texas Medical Branch (UTMB); and UTMB Medical
Director Stephen P. Bowers, M.D. Daniels’s complaint alleged that the
defendants were deliberately indifferent to his serious medical needs during two
periods when he was incarcerated at the Dallas County Jail. Daniels challenges
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10476
the district court’s certification, pursuant to Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997), that his appeal is not taken in good faith.
The district court dismissed Daniels’s claims against DCHD on the basis
that the summary judgment evidence showed Daniels received appropriate care
and that Daniels was responsible for any delays in his medical treatment.
Daniels has abandoned this issue by failing to identify any facts to refute this
determination. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Daniels argues that the dismissal of his claims against Dallas County for
failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a)
was error because the district court erroneously assumed that the Dallas County
Jail has a two-stage grievance procedure. The district court did not err. See
Crowder v. U.T.M.B. Unknown Nurse, No. 3-06-CV-0254-BD, 2007 WL 14264
(N.D. Tex. Jan. 3, 2007), aff’d, 267 Fed. App’x 319 (5th Cir.2008). We reject
Daniels’s contention that the dismissal of his claims against UTMB on grounds
of Eleventh Amendment immunity was error. See Scott v. Pfizer Inc., 182 F.
App’x 312, 315 (5th Cir. 2006); University of Texas Medical Branch at Galveston
v. Mullins, 57 S.W.3d 653, 657 (Tex. App. 2001).
Daniels did not object to the magistrate judge’s recommendation that the
claims against Dr. Bowers be dismissed because Daniels sued Dr. Bowers in his
supervisory capacity only. The district court adopted this recommendation and
granted summary judgment in favor of Dr. Bowers. We decline to address
Daniels’s argument that the claims against Dr. Bowers should not have been
dismissed because the doctor was “present” during a discussion of Daniels’s
medical problems because he did not raise the issue in the district court. See
Lemaire v. La. Dept. of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
Daniels additionally argues that the entry of summary judgment was
improper because the procedure used in the district court was flawed due to
prejudice and judicial misconduct; he has had problems engaging in legal
research; and he should have been allowed to conduct unspecified discovery.
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No. 08-10476
These arguments are unavailing. Daniels’s appeal is without arguable merit
and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is dismissed. See 5 TH C IR. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Daniels is cautioned that if he accumulates three strikes under § 1915(g), he will
not be able to proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
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