UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40723
Summary Calendar
RICHARD WAYNE COLLINS,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, Director, Texas Department
of Criminal Justice, Institutional Division; JOSEPH
KEITH PRICE, Warden, Coffield Unit; BILL LAYTON,
Hospital Administrator; THOMAS CARROLL FORD,
Doctor, Coffield Unit; P. PURSCHE, Nurse, Coffield Unit;
UNIDENTIFIED UPSHAW, Assistant Warden, Coffield
Unit; JAMES A. SHAW, JR., Director, Texas Department
of Criminal Justice, Institutional Division; O.D. HUBBTZ,
Deputy Director, Texas Department of Criminal Justice,
Institutional Division; MICAH N. GROS, Co. 3, Coffield
Unit; PAUL GRIFFEY, Co. 3, Coffield Unit; UNKNOWN
COUNSEL SUB., Coffield Unit; BERNIE L. BUSH, Cpt.,
Coffield Unit; B. BLANTON, Coffield Unit; C. WALLIS,
Counsel Sub., Coffield Unit; REGIONAL DIRECTOR,
Texas Department of Criminal Justice, Institutional Division;
UNKNOWN DEFENDANT, Coffield Unit; PATRICK K.
VEST, Lt., Coffield Unit; STEVEN W. WILLIAMS, Sgt.,
Coffield Unit; CHAD E. KELLEY, Co. 3, Coffield Unit;
MICKEY L. DEAN, Co. 3, Coffield Unit; SHANE D.
FARMER, Co. 3, Coffield Unit; TAMMY R. HAM, Co. 3,
Coffield Unit; SABAS SANCHEZ, Co. 3, Coffield Unit;
A. CARLILE, Co. 3, Coffield Unit; UNKNOWN DEFENDANT,
Cpt., Coffield Unit; ALL DEFENDANTS,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(6:96-CV-1104)
January 30, 1998
Before POLITZ, Chief Judge, HIGGINBOTHAM and PARKER, Circuit Judges.
POLITZ, Chief Judge:*
Richard Wayne Collins, proceeding pro se and in forma pauperis, appeals the
28 U.S.C. § 1915(e)(2)(B)(i) & (ii) dismissal of his 42 U.S.C. § 1983 civil rights
lawsuit as frivolous and for failure to state a claim. For the reasons assigned, we
affirm.
Background
Collins, a Texas state prisoner, suffers from asthma and other respiratory
problems. He claims that he was forced to work in an environment filled with dust,
pollen, mold, and fungus which exacerbated his condition. Collins filed a civil
rights complaint alleging that the director of the Texas Department of Criminal
Justice, Institutional Division, and numerous officials of the Coffield Unit were
deliberately indifferent to his serious medical needs, subjected him to cruel and
unusual punishment, and retaliated against him by, inter alia, assigning him to work
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
2
in conditions inconsistent with his medical restrictions, failing to diagnose other
medical conditions, denying him immediate access to medical care, denying
grievances, and filing false disciplinary charges.
The magistrate judge conducted a Spears1 hearing. After reviewing Collins’
objections and conducting a de novo review, the district court adopted the
magistrate judge’s report and dismissed Collins’ complaint with prejudice as
frivolous and for failure to state a claim.
Analysis
For the first time on appeal, Collins contends that the district court erred by
not ordering the United States Department of Justice to deliver certain evidence he
claims he has for the court’s review;2 by dismissing his complaint with prejudice;
and failing to construe his motion for extension of time to amend his complaint as
either a motion to postpone proceedings or as a motion for voluntary dismissal. We
review contentions not raised in the district court only for plain error.3 We find no
error, plain or otherwise, in the issues raised by Collins. His appeal is without
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
Collins wrote to the Department of Justice asking for assistance with the alleged civil
rights violations due to the dusty working conditions. He allegedly sent copies of grievance
reports, sworn witness statements, and his own chronicle of the working conditions. Collins
alleges that this evidence was necessary to prove that he has stated a claim.
3
Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
3
arguable merit and is frivolous.
Collins is cautioned that any future frivolous appeals filed by him or on his
behalf will invite the imposition of the full panoply of sanctions, including the
requiring of prior court approval before an appeal may be filed.
JUDGMENT AFFIRMED; SANCTIONS CAUTION ISSUED.
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