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Fonseca v. University Medical Center ( 2022 )


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  • Case: 21-50454    Document: 00516382285       Page: 1    Date Filed: 07/05/2022
United States Court of Appeals
for the Fifth Circuit                            United States Court of Appeals
Fifth Circuit
FILED
July 5, 2022
No. 21-50454
Summary Calendar                     Lyle W. Cayce
Clerk
Timothy A. Fonseca,
Plaintiff—Appellant,
versus
University Medical Center; Laura Eisenberg, UMC
Urologist; Michael Damian Bagg, UMC Urologist; Jeffery
Taber, UMC Urologist; Jose Doe, 7th floor UMC Nurse; Richard
Wiles, Sheriff, El Paso County, TX; Christina Morton, Director of
Nursing, El Paso Jail Annex; Hilda Ramirez, Clerk, El Paso Jail Annex;
Micky Balles, Weekend Nurse, El Paso Jail Annex; Christina
Roche, Front Desk RN, El Paso Jail Annex; L. T. Mondnez, Special
Needs Lieutenant, El Paso Jail Annex; Mario Correa, Detective, El Paso
Sheriff’s Office; Michael J. Sebastia, Contracted Urologist; Nurse
Keith Seidel,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:20-CV-180
Before Davis, Jones, and Elrod, Circuit Judges.
Case: 21-50454      Document: 00516382285           Page: 2    Date Filed: 07/05/2022
No. 21-50454
Per Curiam:*
Timothy A. Fonseca, now Texas prisoner # 2318020, filed a pro se
civil rights complaint challenging medical treatment he received at the
University Medical Center before he became a pretrial detainee and care he
received during his detention in the El Paso County Jail. The district court
dismissed Fonseca’s allegations of constitutional violations for failure to state
a claim on which relief may be granted,
    28 U.S.C. § 1915
    (e)(2)(B)(ii), and
declined to exercise supplemental jurisdiction over the remaining state law
claims,
    28 U.S.C. § 1367
    (c)(3). We affirm.
Contrary to Fonseca’s arguments, the district court was authorized to
issue a sua sponte dismissal order, and it was not required to permit discovery
prior to the dismissal. See § 1915(e)(2). Furthermore, the court was
authorized to order the defendants to construct a record to assist with
screening. See Norton v. Dimazana,
    122 F.3d 286
    , 292-93 (5th Cir. 1997).
Next, Fonseca has provided no indication that he did not plead his
best case; therefore, it is unavailing for him to argue that the district court
erroneously failed to provide an opportunity to amend the complaint prior to
dismissal. See Brewster v. Dretke,
    587 F.3d 764
    , 767-68 (5th Cir. 2009). To
the extent that Fonseca challenges the district court’s failure to appoint
counsel, he has abandoned that claim by his failure to brief. See Yohey v.
Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993). To the extent that Fonseca
challenges the district court’s decision declining to exercise supplemental
jurisdiction over his state law claims against the University Medical Center
defendants, we can discern no abuse of discretion from his arguments. See
Carnegie-Mellon Univ. v. Cohill,
    484 U.S. 343
    , 350 & n.7 (1988).
*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
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Case: 21-50454      Document: 00516382285          Page: 3    Date Filed: 07/05/2022
No. 21-50454
As for the district court’s § 1915(e)(2)(B)(ii) dismissal, Fonseca’s
allegations that the El Paso County Jail defendants acted with deliberate
indifference are best described as a disagreement with the medical treatment
he received or, at most, allegations that the defendants committed
malpractice. His allegations do not state a constitutional violation. See Hare
v. City of Corinth,
    74 F.3d 633
    , 639, 647-48, 650 (5th Cir. 1996) (en banc); see
also In re Great Lakes Dredge & Dock Co. LLC,
    624 F.3d 201
    , 210 (5th Cir.
2010); Norton,
    122 F.3d at 292
    ; Mendoza v. Lynaugh,
    989 F.2d 191
    , 193 (5th
Cir. 1993).
Accordingly, the judgment of the district court is AFFIRMED.
Fonseca’s motions for the appointment of counsel and for a default judgment
are DENIED.
Our affirmance of the district court’s dismissal of Fonseca’s § 1983
complaint under § 1915(e) counts as a strike under § 1915(g). See Adepegba v.
Hammons,
    103 F.3d 383
    , 387 (5th Cir. 1996), abrogated in part on other grounds
by Coleman v. Tollefson,
    575 U.S. 532
    , 534-41 (2015).              Fonseca is
CAUTIONED that, if he accumulates three strikes, he will not be allowed
to proceed in forma pauperis 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).
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