Michelle Brown v. Daniel Schmedhorst

Case: 16-51150 Document: 00514105451 Page: 1 Date Filed: 08/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51150 FILED
August 7, 2017
Lyle W. Cayce
MICHELLE JEAN BROWN,
Clerk
Plaintiff-Appellant
v.
DANIEL SCHMEDHORST, C/O Warden Vikki Wright; SERGEANT
ALPHONSO STEVENS; LIEUTENANT DARRELL MANDIGO, C/O Warden
Vikki Wright; LIEUTENANT GILBERT MARTINEZ, C/O Warden Vikki
Wright; UNKNOWN FEMALE CORRECTIONAL OFFICER, C/O Warden
Vikki Wright; OFFICE OF THE ATTORNEY GENERAL,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:15-CV-229
Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Michelle Jean Brown, Texas prisoner # 01066458, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal from the dismissal of her
42 U.S.C. § 1983 civil rights complaint. The district court denied Brown’s
motion to proceed IFP, certifying that the appeal was not taken in good faith.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-51150
By moving in this court for leave to proceed IFP on appeal, Brown is
challenging this certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
In her brief, Brown does not address the dismissal of defendants Daniel
Schmedhorst and unidentified female corrections officer; the dismissal of the
official capacity monetary claims against defendants Alphonso Stevens,
Gilbert Martinez, and Darrell Mandigo; or the district court’s grounds for
denying her motion to amend the complaint. Brown has therefore abandoned
any challenge to the district court’s certification decision on these grounds. See
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Brown’s individual capacity claims against Stevens, Martinez, and
Mandigo, accepted as true, show only that she experienced a delay in receiving
treatment, not a denial of treatment, and that her condition was fully treated.
A delay in medical treatment is not actionable unless the defendants were
deliberately indifferent to a serious medical need and their indifference
resulted in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.
1993). Brown’s complaint does not cite facts which meet these requirements.
See id. Her appeal lacks arguable merit and is therefore frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.
Brown’s motion for permission to proceed IFP is DENIED. The dismissal of
Brown’s complaint and the dismissal of her appeal both count as strikes for
purposes of 28 U.S.C. § 1915(g). See Brown v. Megg, 857 F.3d 287, 290-92 (5th
Cir. 2017); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Brown
is WARNED that if she accumulates a third strike, she will not be allowed to
proceed IFP in any civil action or appeal while incarcerated or detained in any
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facility unless she is under imminent danger of serious physical injury. See
§ 1915(g).
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