Derek Harris v. Stephen Kuplesky , 582 F. App'x 334 ( 2014 )

Case: 14-30093 Document: 00512768726 Page: 1 Date Filed: 09/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30093
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 15, 2014
DEREK D. HARRIS,
Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
STEPHEN KUPLESKY; DOCTOR WHEAT; TIMOTHY KEITH;
CORRECTIONS CORPORATION OF AMERICA; NURSE BROADWAY,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:13-CV-598
Before DAVIS, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
Derek D. Harris, Louisiana prisoner # 414072, pro se and in forma
pauperis, challenges the dismissal of his 42 U.S.C. § 1983 complaint for failure
to state a claim and frivolousness. In his complaint, Harris claimed Dr.
Kuplesky, Dr. Wheat, and Nurse Broadway, employees at the Winn
Correctional Center, were deliberately indifferent to his serious medical needs
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 14-30093
when they prescribed him allegedly dangerous medication and failed to
respond to his concerns about the medication other than to discontinue it.
Dismissal for failure to state a claim under § 1915(e)(2) is reviewed de
novo, the standard used for dismissals pursuant to Federal Rule of Civil
Procedure 12(b)(6). E.g., Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998).
To survive dismissal, the complaint must “‘state a claim to relief that is
plausible on its face’”. In re Katrina Canal Breaches Litigation, 495 F.3d 191,
205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Because we conclude that Harris did not meet this standard, we do
not consider separately whether his complaint was frivolous.
On appeal, Harris provides only conclusory assertions of error and
deliberate indifference. Harris fails to articulate facts showing the medical
defendants knew of a substantial risk to Harris’ health and disregarded it
deliberately. See Rogers v. Boatright, 709 F.3d 403, 410 (5th Cir. 2013).
Harris does not challenge the dismissal of his complaint as it pertains to
his claims against Keith, Heyse, or Corrections Corporation of America.
Accordingly, he has abandoned them on appeal. E.g., Yohey v. Collins, 985
F.2d 222, 224–25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Finally, Harris contends the court committed error in denying his motion
for appointment of counsel. Because he fails to claim exceptional circumstances
justify such appointment, he fails to show the district court abused its
discretion. See Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982).
The district court’s dismissal of Harris’ complaint counts as a strike
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387–88
(5th Cir. 1996). Harris is warned that, if he accumulates three strikes, he will
no longer be allowed to proceed in forma pauperis in any civil action or appeal
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No. 14-30093
filed while he is incarcerated or detained in any facility, unless he is under
imminent danger of serious physical injury. See § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.
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