Minix v. Dixon

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 4, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40709
Summary Calendar
PAUL MINIX
Plaintiff - Appellant
v.
WILBUR DIXON, UNIDENTIFIED LINDZEY, UNIDENTIFIED KNEELY,
UNIDENTIFIED CLARK, RITA PARSONS
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CV-240
--------------------
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis, Paul Minix, Texas
prisoner # 638154, filed a civil rights complaint pursuant to
42 U.S.C. § 1983 alleging that various prison infirmary officials
had denied him proper medical care and had been indifferent to
his medical needs. Minix consented to have a magistrate judge
(“MJ”) decide his complaint. After conducting a Spears**
*
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that this opinion should not be published and is not precedent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.
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 03-40709
-2-
hearing, the MJ screened Minix’s complaint and dismissed the
complaint as frivolous, citing 28 U.S.C. § 1915A(b). Minix now
appeals that dismissal.
A review of the record reveals that Minix was seen promptly
and frequently by the staff of the Gurney Unit infirmary for
his complaints of chest pain and hypertension and was treated
conservatively with aspirin therapy. The infirmary staff
conducted an EKG test, which suggested a minor abnormality, and
also prescribed Zantac for Minix’s gastro-esophageal reflux
disorder. Because Minix has not shown that the Gurney Unit
infirmary staff refused to treat him, ignored his complaints,
or intentionally treated him incorrectly, he has not shown that
the MJ abused her discretion in dismissing his complaint as
frivolous. See Domino v. Texas Dep’t of Criminal Justice,
239 F.3d 752, 756 (5th Cir. 2001); Berry v. Brady, 192 F.3d 504,
506 (5th Cir. 1999); Harper v. Showers, 174 F.3d 716, 718
(5th Cir. 1999).
Minix seeks to have this court order that he be transferred
to a medical facility whose infirmary is open 24 hours a day.
The remedy sought by Minix is in the nature of mandamus relief,
which is not available to federal courts to direct state
officials in the performance of their duties and functions.
See, e.g., Moye v. Clerk, DeKalb County Superior Court, 474 F.2d
1275, 1275-76 (5th Cir. 1973); 28 U.S.C. § 1361.
No. 03-40709
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The district court’s dismissal of Minix’s complaint as
frivolous pursuant to 28 U.S.C. § 1915A(b) counts as a strike
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996). Minix is warned that if he
accumulates two more strikes under 28 U.S.C. § 1915(g), he will
not be able to 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.
AFFIRMED; REQUEST FOR MANDAMUS RELIEF DENIED; SANCTION -
WARNING ISSUED.