No. 99-50807
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50807
Summary Calendar
EARNEST RAY SIRLS,
Plaintiff-Appellant,
versus
DAYTON J. POPPELL, Warden; BERNEY KESZLER, Doctor;
J. GIL; ROCHELLE MCKINNEY, RN; WAYNE SCOTT,
Director, Texas Department of Criminal Division,
Institutional Division; RUBY DARLA; JAMES HEYEN;
PATTI ZAROSKY, RN; ARLENE ZMESKAL; EARNESTINE
CARROLL; ELISA BETTALE; LINDA MATHIS; KATI
RODRIGUEZ,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CV-1448
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April 7, 2000
Before JOLLY, JONES and BENAVIDES, Circuit Judges.
PER CURIAM:*
Earnest Ray Sirls, Texas prisoner # 579081, has filed an
application for leave to proceed in forma pauperis (IFP) on
appeal, following the district court’s grant of summary judgment
in favor of the defendants. By moving for IFP, Sirls is
challenging the district court’s certification that IFP status
should not be granted on appeal because his appeal is not taken
*
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that this opinion should not be published and is not precedent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. 99-50807
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in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
Sirls contends that the district court erroneously failed to
consider his allegations that the defendants refused to treat him
for asthma in order to retaliate against him. This assertion is
incorrect. The district court noted that Sirls was alleging a
retaliation claim, but found that the prison medical staff
removed Sirls from the Chronic Care Clinic (CCC) for his asthma
condition after tests showed Sirls to be asymptomatic. This
finding is an implicit denial of Sirls’s assertion that the
motivation was retaliation.
Sirls maintains that the court erred in admitting the
affidavit of a defense expert, which expressed concern that Sirls
could have been trafficking or abusing his asthma medication.
Sirls has provided no reason why the affidavit was not valid, and
the expert’s findings were supported by Sirls’s medical records.
Sirls maintains that the defendants lied and “fixed” the medical
records to show a lack of asthma symptoms. These unsubstantiated
allegations are insufficient to withstand a motion for summary
judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994)(en banc).
Sirls contends that the court erred in applying Estelle v.
Gamble, 429 U.S. 97, 106 (1976), to his case. This issue is
frivolous. The district court properly set forth the standard
for determining deliberate indifference to medical needs, as
articulated in Estelle.
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Sirls maintains that the district court abused its
discretion by not compelling the defendants to answer his second
discovery requests. Discovery matters are entrusted to the sound
discretion of the district court. Richardson v. Henry, 902 F.2d
414, 417 (5th Cir. 1990). The court denied the motion because
Sirls sent the defendants his requests for interrogatories and
admissions in an untimely manner and because he violated the
local rules by not attaching a copy of his discovery requests to
his motion to compel. Sirls has not shown that the district
court abused its discretion with this denial.
Sirls contends that the district court erred in adopting the
defendants’ version of the facts, despite the existence of
conflicting stories. This contention is frivolous. Although
Sirls’s factual statements varied from those of the defendants,
his claims were unsubstantiated and conclusional, which will not
withstand a challenge from competent summary-judgment evidence.
Little, 37 F.3d at 1075. Sirls has not shown error by the
district court.
Sirls also contends that the district court violated his
rights by considering copies of the prison medical records. The
records were properly authenticated by an affidavit of the
records technician. See FED. R. CIV. P. 41(a)(1). Sirls has not
shown that the district court erred in considering these records.
Sirls’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, we uphold the district court’s order
certifying that the appeal is not taken in good faith and denying
No. 99-50807
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Sirls IFP status on appeal, we deny the motion for leave to
appeal IFP, and we DISMISS Sirls’s appeal as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
Sirls has also filed a request to supplement his IFP brief.
He has added an argument asserting that his right to be treated
for his asthma within the CCC is protected under the Americans
with Disabilities Act and the Rehabilitation Act of 1973. This
court would be unable to review the merits of these claims.
Sirls never raised these theories of recovery in the district
court, so the district court never had an opportunity to err.
See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999), cert. denied, 120 S. Ct. 982 (2000). As a result,
Sirls’s motion to supplement is DENIED.
APPEAL DISMISSED; MOTION TO SUPPLEMENT DENIED.