Barnes v. McCree

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 14, 2008
No. 07-10398
Summary Calendar Charles R. Fulbruge III
Clerk
PATRICK NELSON BARNES
Plaintiff-Appellant
v.
YUSELF L MCCREE, Lieutenant; GARY EDWARDS, Correctional Officer;
CHERYL GALLE, LVN; DEBORA CALDWELL, Nurse Practitioner
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:05-CV-220
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Patrick Nelson Barnes, federal prisoner # 777299, appeals the dismissal
of his 42 U.S.C. § 1983 action in which he alleged that the defendants used
excessive force against him and displayed deliberate indifference to his serious
medical needs. The district court granted the defendants’ motions for summary
judgment on grounds that Barnes offered only unsupported conclusions without
*
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should not be published and is not precedent except under the limited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. 07-10398
presenting or adverting to any evidence that would have raised a genuine issue
as to a material fact. See FED. R. CIV. P. 56.
In opposition to the defendants’ motions, which were supported by
competent summary judgment evidence including affidavits, medical records,
and a videotape of the use of limited force, Barnes offered only a “mere scintilla”
of competent evidence and general conclusions, allegations, and speculation,
which are insufficient to defeat summary judgment. See Michaels v. Avitech,
Inc., 202 F.3d 746, 754-55 (5th Cir. 2000); Alizadeh v. Safeway Stores, Inc., 802
F.2d 111, 113 (5th Cir. 1986). In this court, Barnes repeats the allegations of his
complaint with some embellishment but without pointing to any evidence in the
record to support his specific claims of force or injury. Moreover, the videotape
evidence demonstrates that Barnes’s claims have no basis in fact or law and are
therefore frivolous. See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
Barnes’s appeal is dismissed as frivolous. 5TH CIR. RULE 42.2. This
dismissal counts as a strike for purposes of 28 U.S.C.§ 1915(g). We warn Barnes
that once he accumulates three strikes, he may not proceed in forma pauperis
(IFP) in any civil action or appeal unless he “is under imminent danger of
serious physical injury. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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