Ford v. Guthrie

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10209
Conference Calendar
BRENDA LEE FORD,
Plaintiff-Appellant,
versus
NFN GUTHRIE, Doctor, Federal Medical Center - Carswell; FEDERAL
MEDICAL CENTER CARSWELL MEDICAL REVIEW BOARD; NFN PARA, Doctor,
Federal Medical Center - Carswell; NFN RESTO, Doctor, Federal
Medical Center - Carswell; NFN BALLOM, Doctor, Federal Medical
Center - Carswell; NFN LORENZI, Doctor, Federal Medical Center -
Carswell,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CV-87-A
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This opinion is being substituted for the one originally
filed on June 23, 2004, in order to correct errors in identifying
the basis under which plaintiff’s claim was filed.
Brenda Lee Ford, federal prisoner # 26255-077, appeals the
dismissal of her civil rights action pursuant to 28 U.S.C.
§§ 1915(e), 1915A(b). Ford’s motion for leave to file a
*
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this opinion should not be published and is not precedent except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. 04-10209
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supplemental brief in which she requests to be allowed to
supplement her original brief with three documents is DENIED.
Ford argues that during her initial screening at the time
she entered the prison system she was placed on certain medical
restrictions and that the later removal of those restrictions by
the defendants was without any medical support. Because Ford’s
contentions manifest only a disagreement with her medical
treatment, she has not stated a valid constitutional claim. See
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Ford also argues that she should have been afforded the
opportunity to amend her complaint before it was dismissed sua
sponte. The district court does not err in dismissing a suit
without providing an opportunity to amend where, as here, no
viable claim is perceptible from the underlying facts asserted in
the plaintiff’s pleadings. See Jones v. Greninger, 188 F.3d 322,
326-27 (5th Cir. 1999); 28 U.S.C. § 1915(e)(2).
Ford’s appeal is without arguable merit and is therefore
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983); 5TH CIR. R. 42.2. The dismissal of her complaint
and appeal in this matter each count as a “strike” under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Ford has accumulated at least one additional
“strike.” See Ford v. Bogan, No. 01-11496 (5th Cir. Apr. 10,
2002) (unpublished). Because Ford has accumulated at least three
strikes under 28 U.S.C. § 1915(g), she is BARRED from proceeding
No. 04-10209
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IFP in any civil action or appeal filed while she is incarcerated
or detained in any facility unless she is under imminent danger
of serious physical injury. See 28 U.S.C. § 1915(g).
MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C.
§ 1915(g) SANCTIONS IMPOSED.