IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50363
Summary Calendar
RODNEY LEE WOODS,
Plaintiff-Appellant,
versus
JACK M. GARNER, Warden; CHARLIE F.
STREETMAN, Assistant Warden; WILLIAM L.
NORTHROP; DEBORAH A. PARKER; JOHN E.
STICE; RAUL J. MATA; EVELYN COOK; T.M.
WORTHINGTON; MICHAEL W. MOORE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-95-CV-187
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April 11, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Rodney Lee Woods, Texas prisoner # 627825, has filed an
application for leave to proceed in forma pauperis (IFP) on
appeal, following the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint for failure to state a claim upon which relief
can be granted. By moving for IFP, Woods is challenging the
district court’s certification that IFP status should not be
*
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that this opinion should not be published and is not precedent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. 97-50363
-2-
granted on appeal because his appeal is not taken in good faith.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
In his brief in support of his IFP motion, Woods has
included a challenge only to the district court’s dismissal of
his claim that defendant William L. Northrop denied him adequate
medical care. Woods has failed to challenge the district court’s
dismissal of his claims against the other defendants. Woods also
has not challenged the district court’s refusal to permit him to
amend his complaint as a sanction for his failure to comply with
a court order requesting that he supplement his complaint. This
court “will not raise and discuss legal issues that [Woods] has
failed to assert.” Brinkmann v. Abner, 813 F.2d 744, 748 (5th
Cir. 1987). These other issues are therefore deemed abandoned on
appeal.
Woods contends that because he can prove the facts that he
alleged against Northrop, the district court erred in dismissing
his 42 U.S.C. § 1983 complaint. Woods has failed to show that
Northrop’s disagreement with a prior diagnosis of back problems
and resulting refusal to change Woods’s medical classification
constituted a denial of medical care sufficient to raise a claim
under the Constitution. See Estelle v. Gamble, 429 U.S. 97, 106
(1976); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Woods also contends that the district court improperly failed to
consider his first amended complaint. However, the district
court specifically ordered the magistrate judge to consider that
document.
No. 97-50363
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Woods’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
Woods IFP status on appeal, we deny the motion for leave to
appeal IFP, and we DISMISS Woods’s appeal as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. This dismissal of
his appeal as frivolous and the district court’s dismissal of his
complaint for failure to state a claim upon which relief can be
granted constitute two “strikes” for the purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). If Woods obtains one more “strike,” he may not be able to
proceed IFP 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 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED.