Ortiz v. Fernald ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 18, 2004
Charles R. Fulbruge III
No. 04-20186 Clerk
Summary Calendar
MARCOS ORTIZ,
Plaintiff-Appellant,
versus
JOE S. FERNALD; GARY G. MOHR; MELTON W. BROCK; N. JOHNSON,
Defendants-Appellees.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-2897
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Marcos Ortiz, Texas prisoner # 1049113, proceeding pro se and
in forma pauperis (“IFP”), appeals the district court’s dismissal
of his 42 U.S.C. § 1983 complaint for failure to exhaust
administrative remedies and, in the alternative, as frivolous.
Ortiz does not address the district court’s determination that his
Eighth Amendment claims are subject to dismissal for failure to
exhaust administrative remedies. He has therefore waived the
issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Ortiz argues that the district court erred in dismissing as
1
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that this opinion should not be published and is not precedent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.
frivolous his failure-to-protect and denial-of-medical-care claims.
Ortiz claimed that his Eighth Amendment rights were violated when
the defendants failed to protect him against a June 29, 2002,
assault by inmate Lewis Melvin, Jr. Ortiz argues that his report
of a prior attack by another inmate, named Evans, and of a threat
of future violence put the defendants on notice that he would be
assaulted. Ortiz’s allegations do not demonstrate a link between
the two attacks and do not establish that the defendants were
deliberately indifferent to an excessive risk to his safety.
See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Ortiz has not
shown that the district court abused its discretion in dismissing
his failure-to-protect claim as frivolous. See Berry v. Brady, 192
F.3d 504, 507 (5th Cir. 1999).
Ortiz claimed that he was denied medical care following the
assault on June 29, 2002. However, Ortiz admits that he was
examined following the assault and that he was given ice and
Tylenol for the cuts, swelling, and abrasions observed during the
examination. The failure to discover, in the course of the
examination, the more serious injuries alleged by Ortiz is, at
best, an act of medical malpractice which is insufficient to
establish a constitutional violation. See Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991). Ortiz has not shown that prison
officials were deliberately indifferent to his serious medical
needs. See Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994).
He has not shown that the district court abused its discretion in
2
dismissing his denial-of-medical-care claim as frivolous. See
Berry, 192 F.3d at 507. Ortiz’s appeal is
without arguable merit and is frivolous. See Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The district
court’s dismissal of Ortiz’s complaint as frivolous counts as a
“strike” under 28 U.S.C. § 1915(g), as does the dismissal of
this appeal. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Ortiz is CAUTIONED if he accumulates three “strikes,”
he will no longer be allowed 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
28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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