Peter Alfred, Jr. v. Forcht Wade Correctional, et ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 12, 2009
No. 09-30423
Summary Calendar Charles R. Fulbruge III
Clerk
PETER ROY ALFRED, JR.
Plaintiff-Appellant
v.
FORCHT WADE CORRECTIONAL CENTER; VENETIA MICHAEL;
ANTHONY BATSON; DR. HERN; LAURA GEHRIG; W. COLT PALMER;
UNKNOWN INSURANCE CO.; RICHARD STALDER; LINDA RAMSEY
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:07-CV-2098
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Peter Roy Alfred, Jr., Louisiana prisoner # 315023, moves for leave to
proceed in forma pauperis (IFP) on appeal following the district court’s denial of
his IFP motion and certification that his appeal was not taken in good faith.
Alfred’s IFP motion challenging the certification decision “must be directed
solely to the trial court’s reasons for the certification decision.” Baugh v. Taylor,
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-30423
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether the appeal is taken
in good faith “is limited to whether the appeal involves legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citations omitted).
The district court is directed to dismiss a complaint filed by a prisoner if
the complaint is frivolous. See 28 U.S.C. §§ 1915A(b)(1) & 1915(e)(2)(B). This
court reviews the dismissal of a complaint as frivolous for abuse of discretion.
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). A complaint is frivolous if
it lacks “an arguable basis in law or fact.” Id. “A complaint lacks an arguable
basis in law if it is based on an indisputably meritless legal theory[.]” Id.(internal quotation marks and citations omitted).
Alfred argues that the defendants violated his Eighth Amendment rights
by failing to provide him with a continuous positive airway pressure machine
(CPAP) to treat his diagnosed severe sleep apnea. A plaintiff states a cause of
action under the Eighth Amendment when he alleges that a defendant has, with
deliberate indifference, exposed him to an unreasonable risk of serious damage
to his future health. Helling v. McKinney, 509 U.S. 25, 35 (1993); Burleson v.
Texas Dep’t of Criminal Justice, 393 F.3d 577, 589 (5th Cir. 2004). To establish
deliberate indifference a prisoner must show that the defendants “(1) were aware
of facts from which an inference of excessive risk to the prisoner’s health or
safety could be drawn and (2) that they actually drew an inference that such
potential for harm existed.” Burleson, 393 F.3d at 589. (internal quotation
marks and citations omitted). “Deliberate indifference encompasses only
unnecessary and wanton infliction of pain repugnant to the conscience of
mankind.” McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997).
“Disagreement with medical treatment does not state a claim for Eighth
Amendment indifference to medical needs.” Norton v. Dimazana, 122 F.3d 286,
292 (5th Cir. 1997).
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No. 09-30423
The record shows that Alfred received adequate medical treatment for his
sleep apnea during his stay at Forcht Wade Correctional Center. Further, an
affidavit by Dr. Alphonzo Pacheco establishes that Alfred continued to receive
medical attention for his sleep apnea following his transfer to Winn Correctional
Center and that the sleep apnea never posed a serious risk to Alfred’s health.
See Burleson, 393 F.3d at 589. Alfred has been receiving CPAP treatments since
May 2008.
Alfred has failed to show that the district court abused its discretion in
dismissing his Eighth Amendment claim as frivolous. See Geiger, 404F.3d at
373. Further, contrary to Alfred’s suggestion, he did not have a right to a default
judgment simply because the defendants did not respond to his suit. See
Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996) (“A party is not entitled to a
default judgment as a matter of right, even where the defendant is technically
in default.”).
Alfred’s appeal is without arguable merit and is frivolous. See Howard,
707 F.2d at 220. The district court’s dismissal of Alfred’s complaint and this
court’s dismissal of his appeal both count as strikes for purposes of § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Alfred has at
least one previous strike. Alfred v. Lofton, No. 1:08-CV-0554 (W.D. La. Sept. 9,
2008). Because Alfred has now accumulated at least three strikes, he is barred
from proceeding 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).
Alfred’s motion to proceed IFP is DENIED, and his appeal is DISMISSED
as frivolous pursuant to 5 TH C IR. R. 42.2.
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