United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2006
Charles R. Fulbruge III
Clerk
No. 05-40880
Summary Calendar
CARLOS ARMENTA,
Plaintiff-Appellant,
versus
MEDICAL DIRECTOR REGINALDO STANLEY; PHYSICIAN’S ASSISTANT
JONATHAN PLEASANT; DEBRA GRIGG; ATTORNEY GENERAL OFFICE OF TEXAS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
(5:04-CV-285)
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Carlos Aviles Armenta, Texas prisoner #
743688, appeals the dismissal of his 42 U.S.C. § 1983 complaint as
frivolous and for failure to state a claim on which relief may be
granted. Armenta contends that the district court erred in (1)
dismissing his claim, (2) denying the appointment of counsel, and
(3) denying discovery. We construe his “motion for summary
judgment” as a supplement to his appellate brief.
*
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this opinion should not be published and is not precedent except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.
Armenta asserts that on January 27, 2004, Nurse Grigg gave
Armenta a few Tylenol tablets and sent him to solitary confinement
with a broken nose, dislocated shoulder, and serious rib injury;
that there was a two-day delay in medical attention from January 27
to January 29; that Dr. Stanley treated him by phone and prescribed
ibuprofen for ten days; that P.A. Pleasant prescribed nasal saline
spray for Armenta’s broken nose and refused to order x-rays of
Armenta’s ribs; and that Armenta’s ribs were not x-rayed until
March 5. Armenta’s own allegations in his complaint and the
medical records fail to show that any of the defendants “refused to
treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would
clearly evince a wanton disregard for any serious medical needs.”
Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001) (internal quotation marks and citation omitted).
To the extent Armenta argues that the defendants should have
employed a different course of treatment or should have ordered a
rib x-ray at an earlier time, his allegations and the underlying
facts do not support a constitutional claim grounded in deliberate
indifference. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991).
The district court did not abuse its discretion in declining
to appoint counsel to represent Armenta. See Ulmer v. Chancellor,
691 F.2d 209, 212 (5th Cir. 1982). Neither has Armenta shown that
the district court abused its discretion regarding its discovery
2
orders. See McKethan v. Texas Farm Bureau, 996 F.2d 734, 738 (5th
Cir. 1993).
The district court's dismissal for failure to state a claim
counts as one strike under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). We caution Armenta
that if he accumulates three strikes, he will not be allowed to
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 § 1915(g).
AFFIRMED; ALL PENDING MOTIONS DENIED; SANCTION WARNING ISSUED.
3