United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-10157
Conference Calendar
CLARENCE RAY BLAYLOCK,
Plaintiff-Appellant,
versus
TIMOTHY REVELL, Dr.; DAVID BASSE,
Medical Doctor; R. PRICE, Warden,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:01-CV-315
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Clarence Ray Blaylock, Texas prisoner # 732755, appeals the
dismissal of his civil rights complaint as frivolous. We hold
that the district court did not abuse its discretion in
dismissing the complaint without first affording Blaylock the
opportunity to respond to a Watson2 questionnaire.
*
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that this opinion should not be published and is not precedent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.
2
Watson v. Ault, 525 F.2d 886 (5th Cir. 1976).
No. 02-10157
-2-
We further hold that the district court did not err in its
conclusion that the alleged facts did not constitute deliberate
indifference to Blaylock’s medical needs. See Wilson v. Seiter,
501 U.S. 294, 297 (1991). Blaylock’s allegation that Dr. Revell
exacerbated his back pain with a chiropractic maneuver states
only a claim of malpractice, which is not cognizable in a 42
U.S.C. § 1983 proceeding. See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991). His allegation that Drs. Basse and Revell
displayed deliberate indifference when they refused to continue
him on the pain medication that had been prescribed by Dr. Ridge
is a disagreement over the type of medical care received, and,
therefore, it also does not rise to the level of a constitutional
violation. See id. Blaylock has not alleged facts which show
that Warden Price was personally involved in any of his medical
decisions; recovery pursuant to a respondeat-superior or
vicarious-liability theory is not available under 42 U.S.C.
§ 1983. Baskin v. Parker, 602 F.2d 1205, 1207-08 (5th Cir.
1979).
Blaylock’s allegation that Dr. Revell acted with retaliatory
motive is conclusional, and conclusional allegations of
retaliation are insufficient to withstand dismissal. Jones v.
Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).
AFFIRMED.