IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10336
Summary Calendar
ROBERT GLENN TAYLOR,
Plaintiff-Appellant,
versus
JAMES HOWARDS, Correctional Officer III; NO FIRST NAME
SINCLAIR, Plant Supervisor; M. DIXON, Unit Safety Officer;
S.O. WILLIAMS, Plant Manager; JOHN BAINE, RN Director of
Nurses; TIMOTHY REVELL, DR., MD; CHARLES RIDGE, DR. MD;
D. RICHARDSON, RN; NO FIRST NAME ELLENBURG, Unit Major;
NO FIRST NAME ROWLAND, Unit Lieutenant; JEFFERY D. CONE,
MDPA; AL MARKS, Health Administrator; DARWIN D. SANDERS,
Warden; GLENN SMITH, Previous Unit Warden; NO FIRST NAME
GILHOUSE, Captain; NO FIRST NAME MURPHY, Unit IAD; R. MCCOY,
Grievance Coordinator; N. SOUTHERN, Grievance Investigator;
D. CALZADA, RN; LANNETTE LINTHIEUM, MD; ROCHELLE MCKINNEY,
RHMA; JOAN WYATT, Regional Director; GARY L. JOHNSON,
Director, Texas Department of Criminal Justice, Institutional
Division; WAYNE SCOTT, Executive Director; ALLEN POLUNSKY,
Chairman of the Texas Board of Criminal Justice; TEXAS TECH
UNIVERSITY HEALTH SCIENCE CENTER, Health Care Provider;
UNKNOWN PARTIES,
Defendants-Appellees.
________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:00-CV-5
_________________________________________
July 17, 2001
Before POLITZ, JOLLY, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Robert Glenn Taylor, Texas prisoner # 683162, appeals the dismissal of his
42 U.S.C. § 1983 action as frivolous and for failure to state a claim under 28 U.S.C.
§§ 1915A and 1915(e)(2) and 42 U.S.C. 1997e(c)(1). Taylor contends that the
failure to follow rules for reporting his injury and accident was an independent due
process violation. The district court correctly held that the defendants’ alleged
failure to follow prison rules and regulations does not, without more, give rise to a
constitutional violation.1 Likewise, Taylor’s argument that the defendants tampered
with his medical records, to add a notation of what actually happened on the night of
the accident, does not state a claim of a constitutional violation.2
Taylor maintains that appropriate and adequate treatment was delayed and
was denied him. He admits that he was sent to a specialist, Dr. Paige, but he
contends that Nurses D. Richardson and D. Calzada intentionally interfered with the
treatment prescribed by Dr. Paige. This issue is res nova. New allegations may not
be raised and will not be addressed for the first time on appeal.3
Taylor contends that Dr. Jeffery Cone did not properly advise him and,
accordingly, obtain his informed consent before surgery, and failed to recognize and
*
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.
1
Myers v. Klevenhagen, 97 F.3d 91 (5th Cir. 1996).
2
Id.
3
Leverette v. Louisville Ladder Co., 183 F.3d 339 (5th Cir. 1999), cert. denied, 528 U.S.
1138 (2000); Reeves v. Collins, 27 F.3d 174 (5th Cir. 1994).
2
respond timely to post-operative complications. Taylor states that he discovered
that the surgery was unsuccessful on November 20, 1998. He contends that Dr.
Cone entrusted his care to Nurse Jones, which violated the standard of care and
constituted malpractice, and that the nurse denied him an x-ray and did not refer him
to the doctor.
Unsuccessful medical treatment, acts of negligence, neglect, or medical
malpractice alone are insufficient to give rise to a § 1983 cause of action.4 Taylor’s
allegations against Dr. Cone fail to state a constitutional claim. His allegations
against Nurse Jones are being raised for the first time on appeal. Jones is not a
defendant herein.
Taylor asserts that Captain Gilhouse had a duty to investigate before
disciplining him for failure to work. Absent an allegation that the Captain was
aware of Taylor’s injuries and that requiring him to work would create a substantial
risk of serious harm, Taylor has not stated adequately a claim of deliberate
indifference.5
Taylor further contends that his factual allegations raise a material issue under
the eighth amendment. He contends that the district court improperly resolved
factual disputes, which he does not identify, other than to repeat his general
allegations of deliberate indifference and an attempt to cover-up his accident and
injuries.
4
Varnado v. Lynaugh, 920 F.2d 320 (5th Cir. 1991).
5
Reeves, 27 F.3d at 176-77 (medical records did not state restrictions; officers not
deliberately indifferent for requiring prisoner to work).
3
Taylor’s claims against other defendants which are not addressed in his
appellate brief are deemed abandoned.6
This appeal is without arguable merit and is frivolous.7 As such, it is
DISMISSED.8 Taylor’s motion for appointment of counsel is DENIED.
Taylor is hereby informed that the dismissal of this appeal as frivolous counts
as a strike for purposes of 28 U.S.C. § 1915(g), in addition to the strike for the
district court’s dismissal.9 We caution Taylor that once he accumulates three
strikes, he may not 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 AS FRIVOLOUS; MOTION FOR APPOINTMENT
OF COUNSEL DENIED; CAUTION ISSUED.
6
Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993).
7
Howard v. King, 707 F.2d 215 (5th Cir. 1983).
8
5TH CIR. R. 42.2.
9
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (“[D]ismissals as frivolous in
the district courts or the court of appeals count [as strikes] for the purposes of [§ 1915(g)].”).
4
Taylor v. Howards
Combined Opinion