Mark Kupstis v. Donald Davis

Case: 11-10910 Document: 00511914774 Page: 1 Date Filed: 07/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2012
No. 11-10910
Summary Calendar Lyle W. Cayce
Clerk
MARK KUPSTIS,
Plaintiff-Appellant
v.
DONALD DAVIS, Field Officer; PATRICK MARTIN, Field Officer; JANCY
WILLIAMS; DIRECTOR, T.D.C.J.; 259TH DISTRICT COURT; ELEVENTH
COURT OF APPEALS, for the State of Texas; STATE OF TEXAS;
HENDRICK’S MEDICAL SERVICES, Individual capacity and official capacity;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, T.D.C.J.,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:10-CV-00157
Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Mark Kupstis, Texas prisoner # 707122, proceeding pro se, moves this
court for authorization to proceed in forma pauperis (IFP) in an appeal of the
district court’s judgment dismissing his 42 U.S.C. § 1983 complaint as frivolous
pursuant to 28 U.S.C. § 1915(e). By moving to proceed IFP, Kupstis is
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10910
challenging the district court’s certification that his appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Section
1915(e)(2)(B)(i) requires a district court to dismiss an IFP complaint at any time
if the court determines that such complaint “is frivolous or malicious.” “A
complaint is frivolous if it lacks an arguable basis in law or fact.” Berry v.
Brady, 192 F.3d 504, 507 (5th Cir. 1999) (internal quotation marks and citation
omitted).
As an initial matter, Kupstis does not address the dismissal of his claims
against the 259th District Court, the Texas Eleventh Court of Appeals, and
Hendrick’s Medical Services. Accordingly, he has abandoned such claims on
appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Kupstis avers that the defendants were deliberately indifferent to his
serious medical needs regarding his groin pain, sore throat, and hepatitis C.
Prison officials violate the constitutional prohibition against cruel and unusual
punishment when they demonstrate deliberate indifference to a prisoner’s
serious medical needs, constituting an “unnecessary and wanton infliction of
pain.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal quotation marks and
citation omitted). Kupstis’s allegations amount to no more than a disagreement
with his medical care and claims of negligence and medical malpractice, which
do not establish deliberate indifference. See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991).
Kupstis contends that he was deprived of due process when the defendants
confiscated and destroyed his legal materials and personal property. Kupstis’s
claims rest on the purported random and unauthorized acts of prison officials,
and his claims for § 1983 damages are barred by the Parratt/Hudson doctrine.
See Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527(1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327(1986); Holloway v. Walker, 784 F.2d 1287, 1293 (5th Cir. 1986).
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Kupstis has failed to show that his appeal involves “legal points arguable
on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citations omitted). His IFP motion
is therefore denied, and his appeal is dismissed. See Baugh, 117 F.3d at 202 &
n.24. Kupstis’s motion for appointment of counsel is also denied.
The dismissal of this appeal as frivolous counts as a strike under § 1915(g),
as does the district court’s dismissal of the complaint. See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Kupstis is warned that if he
accumulates a third strike, then he may not 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).
MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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