United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 28, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41338
Summary Calendar
DAVID WHITE,
Plaintiff-Appellant,
versus
LESLIE E. DUPUY, Mental Health Services Director-University of
Texas Medical Branch, in her individual and official capacities;
DEE KIFOWIT, Director-Texas Council on Offenders with Mental
Impairments, in her individual and official capacities; ROMEO
YAP, Psychiatrist-Eastham Unit, in his individual and official
capacities; LIMSIACO MARCIANO, Psychiatrist-Eastham Unit, in his
individual and official capacities; GARY JOHNSON, Director-Texas
Department of Criminal Justice-Institutional Division, in his
individual and official capacities; JANIE M. COCKRELL, Director-
Texas Department of Criminal Justice-Institutional Division, in
her individual and official capacities; ROCHELLE MCKINNEY, Chief
of Professional Standards for University of Texas Medical Branch
and Texas Department of Criminal Justice-Institutional Division,
in her individual and official capacities; PRISCILLA DALY,
Regional Director-Eastham Unit, in her individual and official
capacities, DAVID SWEETIN, Assistant Warden-Eastham Unit, in his
individual and official capacities,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:02-CV-115
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Before GARWOOD, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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. 02-41338
-2-
David White appeals the dismissal of his 42 U.S.C. § 1983
claims as frivolous. He argues that defendants Charles Hester
and Tracy McClin violated his due process rights during his
disciplinary proceeding; that the magistrate judge abused her
discretion in denying appointment of counsel; and that his
factual allegations support a claim of deliberate indifference to
his paranoid schizophrenia.
White has not shown that the result of his disciplinary
proceeding has been overturned or declared invalid, and he
therefore cannot use 42 U.S.C. § 1983 as a vehicle to challenge
alleged due process violations arising from those proceedings.
See Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en
banc). Consequently, he has demonstrated no error in the
dismissal of defendants Hester and McClin.
The magistrate judge did not abuse her discretion in denying
White appointment of counsel. See Castro Romero v. Becken, 256
F.3d 349, 353-54 (5th Cir. 2001). White gave lucid and coherent
testimony at the Spears2 hearing and was able to articulate his
claims.
Finally, White has not alleged facts that support a claim of
deliberate indifference to his medical condition. The gravamen
of White’s complaint is that he received inappropriate
psychiatric medications and that his medical condition would be
better treated in the Skyview Unit. Such a claim amounts to a
2
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 02-41338
-3-
disagreement over the type of psychiatric treatment afforded him
and, thus, is legally insufficient to establish a constitutional
deprivation. See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.
1997).
White’s appeal is without arguable merit and is dismissed.
See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983). White is 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. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). We caution White that once he accumulates three strikes,
he may not proceed in forma pauperis 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). White should review any pending appeals
and withdraw any that are frivolous.
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.