United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-41501
Summary Calendar
BILLY C. BLANTON,
Plaintiff-Appellant,
versus
DAVID STACKS, individually and in his official capacity; CHARLES
R. FRIZZELL, individually and in his official capacity; LARRY
SETTLES, individually and in his official capacity; UNIDENTIFIED
LATHAM, individually and in his official capacity; UNIDENTIFIED
AGUILERA, individually and in his official capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:04-CV-151
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Billy C. Blanton, Texas prisoner number 750531, filed the
instant 42 U.S.C. § 1983 suit to seek redress for the defendant
prison officials’ alleged wrongdoing. Blanton appeals the
district court’s dismissal of his suit as frivolous and for
failure to state a claim. Blanton also moves this court for the
appointment of counsel. Blanton’s motion for counsel is DENIED.
*
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this opinion should not be published and is not precedent except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. 04-41501
-2-
Blanton argues that the district court erred in dismissing
his claims that the defendants retaliated against him for
exercising his right of access to courts and his right to file
grievances. However, Blanton has not alleged a series of events
from which a plausible retaliation claim could be gleaned, nor
has he offered direct evidence of a retaliatory motive. See
Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). Rather, his
retaliation claims are based on his own personal beliefs and
conclusional assertions, which are insufficient to raise a viable
retaliation claim. See Jones v. Greninger, 188 F.3d 322, 324-25
(5th Cir. 1999); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th
Cir. 1997); Woods, 60 F.3d at 1166. Blanton has not demonstrated
that the district court erred in dismissing his retaliation
claims.
Blanton also contends that the district court erred in
dismissing his claims that the defendants were deliberately
indifferent to his serious medical needs. This argument is
likewise unavailing. Blanton has not established that the
defendants purposefully ignored a serious illness or injury and
that he suffered as a result of their actions or lack thereof.
See Wilson v. Seiter, 501 U.S. 294, 297 (1991). Rather, his
arguments in support of these claims amount to no more than
allegations of negligence or malpractice, which are insufficient
to raise a plausible claim of deliberate indifference. See
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Blanton
No. 04-41501
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has not demonstrated that the district court erred in dismissing
his deliberate-indifference claims.
Blanton’s argument that the magistrate judge was biased
against him is unavailing. Blanton’s allegations are
insufficient to show that a reasonable person who was aware of
all the circumstances surrounding this case would harbor doubts
concerning the magistrate judge’s impartiality. See United
States v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998).
Blanton has shown no error in the judgment of the district
court. Accordingly, that judgment is AFFIRMED. The district
court’s dismissal of Blanton’s suit and this court’s affirmance
of that dismissal count as a single strike for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Blanton is WARNED that if he accumulates three
strikes, he may not proceed in forma pauperis in any civil action
or appeal while he is incarcerated or detained in any facility
unless he is in imminent danger of serious physical injury. See
28 U.S.C. § 1915(g). Moreover, he should review any pending
appeals or district court actions to ensure that they are not
frivolous.
MOTION DENIED; JUDGMENT AFFIRMED; SANCTION WARNING ISSUED.