Drgac v. Murray , 302 F. App'x 254 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 08-20211
Conference Calendar Charles R. Fulbruge III
Clerk
RAY ALLEN DRGAC
Plaintiff-Appellant
v.
OWEN MURRAY, Director
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-554
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Ray Allen Drgac, Texas prisoner # 721604, filed a 42 U.S.C. § 1983complaint against Owen Murray, director of the University of Texas Medical
Branch (UTMB). Drgac alleged that he suffers from tinnitus and that the
medical staff at the Ellis Unit had failed to provide him with adequate medical
care. He thus argued that they had shown deliberate indifference to his serious
medical need. The district court dismissed Drgac’s complaint pursuant to 28
U.S.C. § 1915A as frivolous and for failure to state a claim.
*
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should not be published and is not precedent except under the limited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. 08-20211
On appeal, Drgac reiterates his argument that, despite his receipt of
antibiotic ear drops and other medicines, he was not treated for tinnitus because
the medicines he was given were not made specifically to treat that condition.
He seeks to have this court order UTMB to furnish him with one of several
medications that he thinks would work better than those he had been given. He
also seeks to have this court order UTMB to recommend a medical transfer to
a quieter prison unit and cell location. He prays for this relief despite the
opinion of the Ellis Unit medical staff that such relief was not indicated.
We review the district court’s dismissal de novo. See Ruiz v. United States,
160 F.3d 273, 275 (5th Cir. 1998). Drgac failed to state a claim against the only
named defendant by failing to allege any personal involvement by the defendant
and by failing to attribute the constitutional violation he alleges to any policy
implemented by the defendant. See Thompkins v. Belt, 828 F.2d 298, 304 (5th
Cir. 1987); Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). Further,
Drgac’s deliberate-indifference arguments are premised upon his disagreement
with the treatment deemed appropriate by the Ellis Unit medical staff. He has
thus failed to state a constitutional claim. See Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991).
Accordingly, we AFFIRM the judgment of the district court. Drgac has
moved for the appointment of counsel, and that motion is DENIED. The district
court’s dismissal of Drgac’s complaint counts as a strike for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Drgac is WARNED that if he accumulates three strikes, he will not be permitted
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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