Alegria v. Adams ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 30, 2006
Charles R. Fulbruge III
Clerk
No. 05-41426
Summary Calendar
ANTHONY ALEGRIA,
Plaintiff-Appellant,
versus
DOCTOR CHARLES D. ADAMS; KATERINE PEARSON; DOCTOR BOBBY
VINCENT; PHYSICIAN ASSISTANT JOHN Q. WANG; DOCTOR
ABBAS KHOSHDEL; DOCTOR KENNETH LOVE; PHYSICIAN ASSISTANT
DAVID FORTNER; PHYSICIAN ASSISTANT MELANIE POTTOR;
DOCTOR EDGAR HULIPAS; DOCTOR LARRY LARGENT; DOCTOR
KOKILA NAIK; DOCTOR LANNETTE LINTHICUN; GUY SMITH; AHIA
SHABAZZ; ALLEN HIGHTOWER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:05-CV-106
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Anthony Alegria, Texas prisoner # 932939, appeals the
dismissal as frivolous of his 42 U.S.C. § 1983 claims. Alegria
argues that (1) the magistrate judge erred in determining that
his claims against Dr. Charles Adams were unexhausted; (2) the
magistrate judge abused her discretion in deeming frivolous his
claims against Dr. Kenneth Love and David Fortner; and (3) the
*
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this opinion should not be published and is not precedent except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. 05-41426
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magistrate judge erred in determining that venue was improper as
to the remaining defendants.
We hold that the magistrate judge did not err in holding
that Alegria failed to exhaust his claims against Dr. Adams. “No
action shall be brought with respect to prison conditions under
[§ 1983] . . . by a prisoner . . . until such administrative
remedies as are available are exhausted.” Booth v. Churner, 532
U.S. 731, 736 (2001) (internal quotation marks and citation
omitted). The record reveals that administrative procedures
existed for Alegria to vindicate his claims against Dr. Adams.
And the record in front of the district court contained no
grievances about the September 2003 claims against Dr. Adams;
although Alegria claims on appeal he did file such a grievance,
he cannot introduce new evidence on appeal. See Schwarz v.
Folloder, 767 F.2d 125, 128 n.2 (5th Cir. 1985).
Prison officials violate the constitutional prohibition
against cruel and unusual punishment when they demonstrate
deliberate indifference to a prisoner’s serious medical needs.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). We further hold that
the evidence supports the magistrate judge’s finding that the
adjustments made by Dr. Love and Fortner to Alegria’s Darvocet
dosage were medical judgments as opposed to deliberate
indifference to his pain. Alegria’s claims against Dr. Love and
Fortner amounts to no more than disagreements over the type of
care he received, which, under the facts of his case, is not
No. 05-41426
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actionable under § 1983. See Banuelos v. McFarland, 41 F.3d 232,
235 (5th Cir. 1995).
Finally, we lack jurisdiction to entertain an appeal of the
magistrate judge’s transfer order. See Louisiana Ice Cream
Distribs., Inc. v. Carvel Corp., 821 F.2d 1031, 1033-34 (5th Cir.
1987); see also Brinar v. Williamson, 245 F.3d 515, 516-18 (5th
Cir. 2001).
Alegria’s appeal lacks arguable merit and therefore is
dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). The district court’s dismissal
of the § 1983 claims and our dismissal of this appeal count as
two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Alegria is cautioned
that if he accumulates three strikes under § 1915(g), he will not
be able 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.