Newland v. Nafrawi

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 12, 2007
Charles R. Fulbruge III
Clerk
No. 05-11152
Summary Calendar
LARRY MICHAEL NEWLAND,
Plaintiff-Appellant,
versus
Medical Doctor ADEL NAFRAWI; DR. STEPHEN PECK;
STEVEN RIELLY, Physician’s Assistant; D. PRUITT, Medical
Director; HENDRICK MEDICAL CENTER; D.O. MARK MAXWELL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:03-CV-100
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Larry Michael Newland, Texas prisoner # 658279, appeals the
magistrate judge’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous and for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e) and 1915A. He argues generally that the magistrate
judge erred in dismissing his claim as frivolous and for failure
to state a claim and that he alleged sufficient facts to state a
claim that the defendants were deliberately indifferent to his
serious medical needs. Newland’s allegations amount at most to
*
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this opinion should not be published and is not precedent except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. 05-11152
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negligence, his disagreement with his medical treatment, or
unsuccessful treatment. See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991). Newland has not shown that the defendants
denied him medical care or that their actions constituted
deliberate indifference to his serious medical needs. See Wilson
v. Seiter, 501 U.S. 294, 303 (1991). Newland has not shown that
the magistrate judge erred in dismissing his claim that the
defendants were deliberately indifferent to his serious medical
needs pursuant to § 1915(e) and § 1915A. See Wilson, 501 U.S. at
303; Varnado, 920 F.2d at 321. To the extent that Newland is
attempting to raise a different claim on appeal that the
defendants did not provide him with assistant in using the
restroom, taking a shower, or retrieving his food tray, Newland’s
allegations involves factual questions that could have been
resolved if he had raised them in the district court. Thus, the
error, if any, cannot have been “plain.” Robertson v. Plano City
of Texas, 70 F.3d 21, 23 (5th Cir. 1995).
Newland argues that the magistrate judge erred in using the
heightened pleading standard in dismissing his complaint. The
record shows that the magistrate judge dismissed Newland’s claim
pursuant to §§ 1915(e) and 1915A as frivolous and for failure to
state a claim and did not apply the heightened pleading standard.
Newland argues that the defendants were deliberately
indifferent to his health and safety. Newland’s allegations do
not rise to a constitutional violation absent an allegation of
No. 05-11152
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physical harm. See 42 U.S.C. § 1997e(e); see also Jones v.
Greninger, 188 F.3d 322, 326 (5th Cir. 1999).
Newland has not shown that the magistrate judge erred in
dismissing his complaint for failure to state a claim upon which
relief may be granted. See Hart v. Hairston, 343 F.3d 762, 764
(5th Cir. 2003). Newland is advised that this court’s affirmance
of the district court’s dismissal of his complaint as frivolous
and for failure to state a claim counts as a strike for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387 (5th Cir. 1996).
AFFIRMED; SANCTION WARNING ISSUED.