Holloway v. Oguejiofor , 166 F. App'x 751 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-41021
Summary Calendar
EDWARD LEE HOLLOWAY,
Plaintiff-Appellant,
versus
DR. ALBERT OGUEJIOFOR; P. A. LYNCH; RN CAROL SELF;
MELODY MORRIS; AVIS LOPEZ; UNIVERSITY OF TEXAS SYSTEM,
HEALTH SERVICES DIVISION; DR. CHARLES MULLINS, Vice
Chancellor,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:02-CV-323
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Edward Lee Holloway, Texas prisoner # 744655, appeals the
district court’s dismissal of his pro se, in forma pauperis
(“IFP”), 42 U.S.C. § 1983 complaint for failure to state a claim
upon which relief can be granted. Holloway alleged that the
defendants were deliberately indifferent to his serious medical
needs when he had a heart attack.
*
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this opinion should not be published and is not precedent except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. 05-41021
-2-
We previously vacated the district court’s judgment
dismissing Holloway’s suit as frivolous and directed the district
court to determine whether Holloway had exhausted his
administrative remedies. See Holloway v. Oguejiofor,
No. 04-40246 (5th Cir. Oct. 20, 2004). On remand, Holloway
sufficiently alleged that he exhausted the administrative
remedies available to him. See Days v. Johnson, 322 F.3d 863,
865 (5th Cir. 2003).
To the extent Holloway attempts to incorporate arguments he
made in previous pleadings to this court into his appellate
brief, he may not do so. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). Moreover, he cannot simply rely on this
court’s previous opinion vacating the district court’s dismissal
of his suit as frivolous to support his argument that the
district court erred in dismissing his suit for failure to state
a claim. Contrary to Holloway’s assertion, the standard of law
for dismissing a case as frivolous is not the same as that for
dismissing a case for failure to state a claim. See Martin v.
Scott, 156 F.3d 578, 580 (5th Cir. 1998); Clay v. Allen, 242 F.3d
679, 680 (5th Cir. 2001). A suit can fail to state a claim and
be nonfrivolous. See Neitzke v. Williams, 490 U.S. 319, 320
(1989).
Holloway’s failure to properly address the district court’s
dismissal of his suit for failure to state a claim does, standing
alone, warrant the dismissal of this appeal as frivolous. See
No. 05-41021
-3-
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). Additionally, however, we note that
Holloway’s allegations failed to state a claim that the
defendants were deliberately indifferent to his serious medical
needs. Nurse Morris administered three electrocardiograms
(“EKG”) over the course of approximately two hours, twice
administered medicine that was ordered by Physician’s Assistant
Lynch, and did not release Holloway to his cell until a normal
EKG was conducted, Holloway told her his pain was dissipating,
and Holloway was able to walk unassisted. While Holloway may
have disagreed with the treatment he received from Morris and
Lynch, their level of care does not demonstrate that they were
deliberately indifferent to his medical needs or that they knew
there was a substantial risk of harm in releasing him to his
cell. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Similarly, Nurse Self’s actions in checking Holloway’s heart
despite his assertion of indigestion and her treatment of his
symptoms with medicine for indigestion after an EKG yielded non-
specific results does not indicate that she was deliberately
indifferent to his medical needs or that she knew he faced a
substantial risk of harm if he was released back to his cell.
See id.During a follow-up examination, Nurse Lopez “diagnosed”
Holloway with heartburn and referred his chart to a doctor for an
appointment. Although Nurse Lopez’s misdiagnosis may have
No. 05-41021
-4-
constituted negligence, her belief that Holloway was suffering
from heartburn belies Holloway’s assertion that she knew he was
suffering from an ongoing heart attack and that she was
deliberately indifferent to his serious medical need of treatment
for that medical problem. Id.Finally, Holloway made no specific allegations in support of
his assertion that Dr. Charles Mullins failed to supervise his
employees at the University of Texas System, Health Services
Division properly. He also failed to allege that Drs. Mullins or
Oguejiofor were personally involved in his medical treatment.
See Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990).
Holloway’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
5TH CIR. R. 42.2. Holloway is cautioned that the dismissal of
this appeal as frivolous counts as a strike under 28 U.S.C.
§ 1915(g), as does the district court’s dismissal of his
complaint. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). He is also cautioned that if he accumulates three
strikes under 28 U.S.C. § 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.