United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 13, 2004
Charles R. Fulbruge III
Clerk
No. 03-41762
Summary Calendar
KEVIN M. BOETTNER,
Plaintiff-Appellant,
versus
BEN RAIMER, Doctor; SUSAN L SCHUMACHER, Grievance Administrator;
ROCHELLE MCKINNEY, Registered Nurse; CALVIN CANNON, DDS; EDDIE
CHASTAIN, Clinical Manager,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CV-219
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Kevin M. Boettner, Texas prisoner #906170, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action for
failure to exhaust administrative remedies, for failure to state a
claim upon which relief may be granted, and as frivolous. Boettner
also appeals the district court’s grant of summary judgment to
Calvin Cannon, D.D.S. Boettner asserts that the magistrate judge
erred by denying his motion to amend his complaint and by altering
*
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this opinion should not be published and is not precedent except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. 03-41762
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and omitting some of his claims. Boettner contends that he
exhausted his administrative remedies regarding his claims against
Eddie Chastain and Dr. Ben Raimer. Boettner argues that he stated
a viable claim against Dr. Cannon for threatening him. He further
maintains that the district court erred by not appointing him
counsel for pre-trial matters. For the first time on appeal,
Boettner asserts that the district court judge should have recused
himself. He also contends that the district court erred by
granting Dr. Cannon’s motion for summary judgment and abused its
discretion by dismissing his deliberate indifference claim against
Dr. Cannon as frivolous. Boettner additionally maintains that the
dismissals of his previous complaint and appeal as frivolous were
erroneous and should not count as strikes under 28 U.S.C. §
1915(g).
Boettner had a right to amend his complaint once before the
service of a responsive pleading. See FED. R. CIV. P. 15(a). The
magistrate judge and the district court, however, did consider all
of the claims raised in the amended complaint that Boettner sought
to file. As Boettner has not shown how the result of his case
could have been different if his motion to amend had been granted,
any error in the magistrate judge’s denial of that motion was
harmless. See Cox v. Warden, Federal Detention Center, 911 F.2d
1111, 1114 (5th Cir. 1990). The record belies Boettner’s assertion
that the magistrate judge altered or omitted some of his claims.
No. 03-41762
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As Boettner did not file a Step 1 grievance regarding his
claims against Chastain and Dr. Raimer, the district court did not
err by dismissing those claims for failure to exhaust
administrative remedies. See Wendell v. Asher, 162 F.3d 887, 891
(5th Cir. 1998). Because Boettner argues for the first time on
appeal that he was not required to name Chastain or Dr. Raimer in
his grievances and that he could not file grievances against them
because they were UTMB employees, we review these issues for plain
error only. See Tilmon v. Prator, 368 F.3d 521, 524 (5th Cir.
2004). As these arguments involve factual questions that could
have been resolved if he had raised them in the district court, any
error committed by the district court cannot have met the standard
for plain error. See Robertson v. Plano City of Texas, 70 F.3d 21,
23 (5th Cir. 1995).
The district court did not err by dismissing Boettner’s claim
against Dr. Cannon for threatening him because threats made against
inmates by prison officials do not amount to constitutional
violations. See McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.
1983). Because Boettner has not shown the existence of exceptional
circumstances, the district court did not clearly abuse its
discretion by not appointing him counsel for pre-trial matters.
See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
Boettner argues for the first time on appeal that the district
court judge should have recused himself. Thus, Boettner failed to
present his disqualification argument at a reasonable time in the
No. 03-41762
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litigation. See Hollywood Fantasy Corp. v. Gabor, 151 F.3d 203,
216 (5th Cir. 1998). Furthermore, as Boettner’s recusal argument
is based solely on rulings that the district court judge did or did
not make, he has not shown that recusal was necessary. See Liteky
v. United States, 510 U.S. 540, 555 (1994).
Boettner’s deliberate indifference claim against Dr. Cannon
was based upon his allegation that Dr. Cannon did not provide him
with the treatment that he requested. Boettner’s disagreement with
the treatment that Dr. Cannon offered him, however, was
insufficient to state a claim for deliberate indifference. See
Estelle v. Gamble, 429 U.S. 97, 104 (1976); Varnado v. Lynaugh, 920
F.2d 320, 321(5th Cir. 1991). Boettner did not allege facts
showing that Dr. Cannon had a “wanton disregard” for his dental
needs. See Domino v. Texas Dep’t. of Criminal Justice, 239 F.3d
752, 755 (5th Cir. 2001). Accordingly, the district court did not
abuse its discretion by finding that Boettner’s claim did not have
an arguable basis in law and was frivolous, nor did the district
court err by granting Dr. Cannon’s motion for summary judgment.
See Gonzales v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998).
Boettner’s collateral attack on the dismissals of his complaint and
appeal in Boettner v. Kirkwood, No. 00-41454 (5th Cir. July 24,
2001) (unpublished), is barred by the doctrine of res judicata.
See Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th Cir. 1983).
Boettner’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
No. 03-41762
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Accordingly, it is DISMISSED. See 5TH CIR. R. 42.2. Both the
district court’s dismissal of the complaint and our dismissal of
the instant appeal count as “strikes” for purposes of 28 U.S.C.
§ 1915(g). See Patton v. Jefferson Corr. Ctr., 136 F.3d 458,
463-64 (5th Cir. 1998); Adepegba v. Hammons, 103 F.3d 383, 388 (5th
Cir. 1996). Boettner has also acquired at least two other strikes.
See Boettner v. Kirkwood, No. 00-41454 (5th Cir. July 24, 2001)
(unpublished). Boettner has now accumulated more than three
strikes under 28 U.S.C. § 1915(g), and 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).
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR
IMPOSED; ALL OUTSTANDING MOTIONS DENIED.