Case: 13-10985 Document: 00512765707 Page: 1 Date Filed: 09/11/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 11, 2014
No. 13-10985
Summary Calendar Lyle W. Cayce
Clerk
JIMMY DIAZ,
Plaintiff-Appellant
v.
DAVID BASSE, Doctor; K. WALLACE, Medical Supervisor; S. TENORIO,
Nurse Practitioner; NEAL UNIT FACILITY; OLIVER J. BELL,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:13-CV-112
Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Jimmy Diaz, Texas prisoner # 1737301, appeals the dismissal of his 42
U.S.C. § 1983 complaint pursuant to 28 U.S.C. §§ 1915 and 1915A for failure
to state a claim on which relief may be granted. He alleged that prison officials
violated the Eighth Amendment by failing to adequately treat his skin
condition caused by unsafe drinking water.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-10985
We review de novo the dismissal of a complaint pursuant to
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim on which relief
may be granted. Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010). To state
a claim, “a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks and citation omitted). Contrary
to Diaz’s argument, the district court was not required to allow him to conduct
discovery prior to dismissing his complaint. See §§ 1915(e)(2), 1915A(a).
A prison official can be found liable under the Eighth Amendment for
subjecting a prisoner to inhumane conditions of confinement or denying the
prisoner adequate medical care if he is deliberately indifferent to a substantial
risk of serious harm to the inmate. Farmer v. Brennan, 511 U.S. 825, 828, 832
(1994). The prison official must both be aware that a substantial risk of serious
harm exists and disregard that risk. Id. at 837.
In Diaz’s district court pleadings, he made only general, conclusory, and
speculative allegations about the unsafe nature of the drinking water and
prison officials’ awareness thereof. He therefore failed to allege sufficient facts
from which it could be inferred that defendants knew that the drinking water
posed a substantial risk of serious harm and disregarded that risk. See Iqbal,
556 U.S. at 678; Farmer, 511 U.S. at 837. Assuming arguendo that Diaz
sufficiently alleged that defendants were aware that his skin condition posed
a substantial risk of harm, his allegations do not permit the inference that
defendants disregarded that risk. See id. His complaints of medical error in
diagnosing and treating his skin condition do not state valid claims of
deliberate indifference. See Sama v. Hannigan, 669 F.3d 585, 590 (5th Cir.
2012).
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Case: 13-10985 Document: 00512765707 Page: 3 Date Filed: 09/11/2014
No. 13-10985
Diaz has failed to show that the district court erred in dismissing his
complaint for failure to state a claim on which relief may be granted. See
Green, 623 F.3d at 280. The judgment of the district court is affirmed. Diaz’s
motion for appointment of counsel is denied. See Cooper v. Sheriff, Lubbock
County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
Our affirmance of the district court’s dismissal of Diaz’s § 1983 complaint
for failure to state a claim on which relief may be granted counts as a strike
under § 1915(g). See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). Diaz has three other strikes. See Diaz v. McDuffie, No. 2:13-
CV-80 (N.D. Tex. Feb. 25, 2014); Diaz v. Dockery, No. 2:13-CV-111 (N.D. Tex.
Sept. 5, 2013); Diaz v. Mings, No. 1:04-CV-673 (W.D. Tex. June 16, 2005).
Because Diaz has accumulated at least three strikes, he may not proceed in
forma pauperis in any civil action or appeal filed in a court of the United States
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g). He is also warned that any
future frivolous or repetitive filings in this court or any court subject to this
court’s jurisdiction will subject him to additional sanctions. He should review
all pending matters to ensure that they are not frivolous.
JUDGMENT AFFIRMED; MOTION FOR APPOINTMENT OF
COUNSEL DENIED; § 1915(G) BAR IMPOSED.
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