Boyd v. Stalder , 302 F. App'x 275 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 07-30917
Conference Calendar Charles R. Fulbruge III
Clerk
LEON BOYD
Plaintiff-Appellant
v.
RICHARD STALDER; STATE OF LOUISIANA; WILLIAM EARL HILSTON
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:07-CV-542
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Leon Boyd, Louisiana prisoner # 352412, appeals the dismissal of his 42
U.S.C. § 1983 action with prejudice as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). Boyd argues that the defendants were deliberately indifferent
to his medical needs. He argues that he should have received surgery to stop the
progression of blindness due to sarcoidosis. He was treated with medication
instead and is now blind in his left eye.
*
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should not be published and is not precedent except under the limited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. 07-30917
A district court may dismiss an in forma pauperis (IFP) complaint as
frivolous under § 1915(e) if it lacks an arguable basis in law or fact. Norton v.
Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). We review a § 1915 dismissal as
frivolous for abuse of discretion. Id.
Prison officials violate the Eighth Amendment prohibition against cruel
and unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). An
inmate “must show that the officials refused to treat him, ignored his
complaints, intentionally treated him incorrectly, or engaged in any similar
conduct that would clearly evince a wanton disregard for any serious medical
needs.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.
2001) (internal quotation marks and citation omitted). “Deliberate indifference
requires actual knowledge and conscious disregard of the risk of harm to the
plaintiff.” Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002).
Boyd was given an opportunity to amend his complaint when the
magistrate judge ordered him to provide a more definite statement. See Hogan
v. Midland County Commissioners Court, 680 F.2d 1101, 1103 (5th Cir. 1982).
Boyd has not alleged that the defendants actually knew about his medical
condition or consciously disregarded the risk of harm he faced. The district court
did not abuse its discretion in dismissing Boyd’s complaint as frivolous. Because
Boyd has not raised an issue of arguable merit, his appeal is frivolous. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). As such, it is dismissed. See
5TH CIR. R. 42.2.
The district court’s dismissal of Boyd’s action as frivolous and the
dismissal of this appeal as frivolous each count as a strike for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Boyd
is warned that if he accumulates three strikes pursuant to § 1915(g), he may not
proceed IFP in any civil action or appeal filed while he is incarcerated or
2
No. 07-30917
detained in any facility unless he is under imminent danger of serious physical
injury.
APPEAL DISMISSED; SANCTION WARNING ISSUED.
3