Guy Terry v. Kimberly Blackerby

Case: 13-11405 Document: 00512762318 Page: 1 Date Filed: 09/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-11405 September 9, 2014
Summary Calendar
Lyle W. Cayce
Clerk
GUY DUKE TERRY, also known as Guy D. Terry, also known as Guy Terry,
Plaintiff-Appellant
v.
KIMBERLY A. BLACKERBY, Laundry Manager III; L. CHAVEZ, Nurse
Practitioner,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:13-CV-234
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Guy Duke Terry, Texas prisoner # 1022551, filed a complaint under
42 U.S.C. § 1983, alleging that the defendants were deliberately indifferent to
his serious medical needs. He contended that Kimberly Blackerby, who at the
time was a correctional officer working in the infirmary, gave a false statement
that Terry purposefully refused to take his pain medication. Terry argued
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-11405 Document: 00512762318 Page: 2 Date Filed: 09/09/2014
No. 13-11405
that, based upon Blackerby’s statement, L. Chavez, without conducting a
proper investigation, discontinued Terry’s medication, thus causing him severe
pain, insomnia, and hunger. The district court dismissed Terry’s complaint for
failure to state a claim under 28 U.S.C. §§ 1915A and 1915(e)(2), and, therefore,
our review is de novo using the same standard that applies to dismissals under
Federal Rule of Civil Procedure 12(b)(6). See Samford v. Dretke, 562 F.3d 674,
678 (5th Cir. 2009).
Terry’s allegations are insufficient to state a claim that the defendants
were deliberately indifferent to a substantial risk of serious harm. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994). He has not set forth any facts
that support that Blackerby gave her statement for an improper motive related
to the denial of his medical care or that she knew of and disregarded an
excessive risk to his health. See id. Likewise, Terry has not alleged any facts
that show that, by relying upon Blackerby’s statement, Chavez knew and
disregarded the risk that discontinuing his medication could cause serious
harm to his health or safety. See id. At most, his complaint alleges claims of
mistake or negligence, which are not actionable under § 1983. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Thus, the district court did not
err in dismissing Terry’s complaint for failure to state a claim upon which relief
could be granted.
The district court’s dismissal of Terry’s complaint 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). Terry is warned that, if he accumulates three strikes, he may
not proceed in forma pauperis 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 § 1915(g).
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Case: 13-11405 Document: 00512762318 Page: 3 Date Filed: 09/09/2014
No. 13-11405
Terry has filed a motion for appointment of counsel. Because he has not
shown exceptional circumstances, his motion for the appointment of counsel is
denied. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
SANCTION WARNING ISSUED.
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