IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11014
Summary Calendar
DARRIS D. TEEL,
Plaintiff-Appellant,
versus
KEVIN GARRARD, Lieutenant of Security, Montford Unit; JOE
FERNALD, Head Warden, Montford Unit; MICHAEL ALSOBROOK,
Sergeant of Security, Montford Unit; ROBERT JACKSON,
Correctional Officer III Transport, Montford Unit; REYNA
RODRIGUEZ, Correctional Officer III, Montford Unit; UNKNOWN
OFFICER, Correctional Officer III, Montford Unit; UNKNOWN
OFFICERS, Defendants 7-10, Correctional Officers, Montford
Unit; GAYLA BUXKEMPER, RN, BSN, Charge Nurse, Montford Unit;
DANEIL MOORE, Unit Grievence Coordinator, Montford Unit,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:99-CV-168
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March 23, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Darris D. Teel, Texas prisoner #656908, appeals from the
dismissal of his civil rights action as frivolous. Teel contends
that the magistrate judge failed to give him the benefit of
liberal construction of his pleadings and erroneously dismissed
his complaint for failure to state a claim; that the magistrate
*
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that this opinion should not be published and is not precedent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. 00-11014
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judge effectively amended his complaint by mischaracterizing some
of his allegations; that the magistrate judge failed to consider
whether the use-of-force videotape in his case was altered; that
prison employees used excessive force against him; that prison
employees were deliberately indifferent to his serious medical
needs; that prison employees retaliated against him; and that the
magistrate judge exhibited prejudice against him.
Teel’s contentions that the magistrate judge erred by
failing to give him the benefit of liberal construction and by
dismissing his complaint for failure to state a claim are without
merit. Teel does not indicate how the magistrate judge failed to
construe his pleadings liberally, and his complaint was dismissed
as frivolous, not for failure to state a claim.
Teel argues no law relevant to the amendment of pleadings.
He has not argued any legal argument for appeal regarding any
effective amendment of his complaint. Brinkmann v. Dallas County
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). If his brief
is construed liberally, see Price v. Digital Equip. Corp., 846
F.2d 1026, 1028 (5th Cir. 1988), Teel contends that the
magistrate judge erroneously characterized the allegations in his
pleadings. We have reviewed Teel’s contention regarding
mischaracterization of his pleadings in light of the record, and
we find no mischaracterizations by the magistrate judge.
Teel suggests that use-of-force videotapes generally should
be reviewed critically to determine whether they have been
altered. However, he does not actually allege that there were
any alterations in the videotape at issue in his case. He has
No. 00-11014
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not alleged facts giving rise to any appellate contention
regarding the reliability of the videotape. Brinkmann, 813 F.2d
at 748.
Teel’s own testimony at the hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985), seriously undermined his
excessive-force claim. Teel’s testimony that he would not have
rebelled against the officers had they loaded his legal materials
onto the prison bus before he boarded and that there would have
been no need for a use of force had his legal materials been
loaded first indicated that prison employees were justified in
using at least whatever force was necessary to life him and place
him on the bus. The magistrate judge’s summary of the videotape
indicated that the force used against Teel was constitutionally
acceptable. See Hudson v. McMillian, 503 U.S. 1, 7, (1992).
Teel’s testimony at the Spears hearing that no force would
have been necessary had his legal materials been loaded first
indicated that his medical restrictions were irrelevant to
whether he boarded the bus. His contentions regarding deliberate
indifference to his medical restrictions therefore properly were
dismissed as frivolous.
It is not clear from the record that a prison nurse
adequately examined Teel’s knee. However, the nurse did examine
Teel generally on the bus. Teel’s allegations and the evidence
in the record indicated that the nurse may have been negligent by
not finding that Teel’s knee was out of place. However, any such
negligence did not give rise to a cognizable constitutional
injury. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
No. 00-11014
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Teel contends that he was retaliated against for exercising
his right against use of excessive force. He argues that one
defendant retaliated against him for filing a suit against that
defendant’s wife. He argues that another defendant wrote a false
disciplinary report against him for filing his federal lawsuit.
As is discussed above, the magistrate judge did not abuse
her discretion by dismissing the excessive-force claim as
frivolous. Teel therefore cannot make out any retaliation claim
based on the use of force against him.
Regarding one defendant, Teel alleges in his appellate brief
only that the defendant told him that he would not help Teel with
his legal materials so that Teel could sue him like he sued the
defendant’s wife. Teel’s allegation regarding that defendant
does not give rise to any inference of retaliation. Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)
Teel makes no allegations on appeal giving rise to any
inference of retaliation by another defendant. Teel has not
argued any retaliation issue for appeal regarding that defendant.
Brinkmann, 813 F.2d at 748.
Teel relies solely on the magistrate judge’s findings of
fact and conclusions of law for his argument that the magistrate
judge was prejudiced against him. Adverse rulings alone do not
call into question a judge’s impartiality. Liteky v. United
States, 510 U.S. 540, 555 (1994).
Teel’s appeal is without arguable merit and is frivolous.
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The appeal
therefore is dismissed as frivolous. 5TH CIR. R. 42.2. We found,
No. 00-11014
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on February 13, 2001, that Teel had attained his third “strike”
for purposes of 28 U.S.C. § 1915(g) and informed Teel that “he
may not proceed [in forma pauperis] in the district court or in
this court in any civil actions while he remains in prison unless
he is in imminent danger of serious physical injury.” Teel v.
Burrescia, No. 00-11057 (5th Cir. Feb. 13, 2001)(unpublished).
We remind Teel of the § 1915(g) bar.
APPEAL DISMISSED. 5TH CIR. R. 42.2.