United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 22, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-10445
Summary Calendar
ALFRED ANTHONY HENDERSON,
Plaintiff-Appellant,
versus
R.E. WATHEN, Warden; PATSY F. BELL, Regional Director; JOHN DOE,
Floor Construction Contractors; NFN CHEYNE, Nurse; ALAN FORNEY,
Correctional Officer III; DAVID HILL, Correctional Officer IV;
JAMES RICHEY, Correctional Officer IV,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:01-CV-145
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Alfred Anthony Henderson, Texas inmate # 714885, proceeding
pro se, moves for leave to proceed in forma pauperis (“IFP”) in
the appeal of the district court’s dismissal as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) of his 42 U.S.C. § 1983
complaint. Henderson’s motion is a challenge to the district
*
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that this opinion should not be published and is not precedent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. 03-10445
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court’s certification that his appeal is not taken in good faith.
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Henderson’s allegations concerning the delay in receiving
medical treatment and the denial of adequate medical treatment do
not demonstrate that the defendants acted with deliberate
indifference to his serious medical needs. Estelle v. Gamble,
429 U.S. 97, 106 (1976). Henderson’s allegations demonstrate, at
most, negligence and disagreement with the treatment received;
such conduct does not establish a constitutional violation.
Estelle, 429 U.S. at 106; Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991).
Henderson’s conclusional allegations of retaliation do not
establish a retaliatory motive or a chronology of events from
which retaliation may plausibly be inferred. See Jones v.
Greninger, 188 F.3d 322, 325 (5th Cir. 1999); Tighe v. Wall, 100
F.3d 41, 42 (5th Cir. 1996). Henderson has abandoned by failing
to assert his claims regarding the slip and fall in the shower
and the denial of due process with respect to his classification
as a gang member. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Henderson has not shown that the district court abused its
discretion by denying him leave to amend his complaint. See
Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994); R. 16-36.
Henderson has not shown that the district court erred in
certifying that an appeal would not be taken in good faith. He
No. 03-10445
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has not shown that he will present a nonfrivolous issue on
appeal. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, the motion for leave to proceed IFP is DENIED and
the appeal is DISMISSED as frivolous. Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2.
The dismissal of this appeal and the district court’s
dismissal of Henderson’s 42 U.S.C. § 1983 complaint as frivolous
each count as strikes under the Prison Litigation Reform Act.
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
Henderson is WARNED that if he accumulates three strikes under 28
U.S.C. § 1915(g), he will 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. 28 U.S.C. § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g)
WARNING ISSUED.