United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 20, 2007
Charles R. Fulbruge III
Clerk
No. 05-30446
Summary Calendar
MYCHEAL CALLOWAY,
Plaintiff-Appellant,
versus
AMANDA COWAN; GARY CARTER; NOLAN VEALS; DONALD LAMANA; BURL CAIN;
RICHARD L. STALDER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CV-102
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mycheal Calloway, Louisiana prisoner # 96740, appeals from
the dismissal of his 42 U.S.C. § 1983 suit, wherein he alleged
that the defendants were deliberately indifferent to his serious
medical needs. The district court dismissed the suit for failure
to state a claim upon which relief could be granted. With the
benefit of liberal construction, Calloway argues that the
district court incorrectly dismissed his official capacity claims
*
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this opinion should not be published and is not precedent except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. 05-30446
-2-
and that he sufficiently stated facts to raise a claim for a
constitutional violation for the denial of adequate medical care
A district court’s ruling on a FED. R. CIV. P. 12(b)(6)
motion for failure to state a claim is reviewed de novo. Scanlan
v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). The
motion may be granted “only if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim that
would entitle him to relief.” Id. The plaintiff’s factual
allegations, though not his conclusional allegations or legal
conclusions, are accepted as true. Fernandez-Montes v. Allied
Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993).
Calloway’s complaint named the defendants in both their
official and individual capacities. The district court correctly
dismissed the official capacity claims because official capacity
suits are treated the same as suits against the state, and
Eleventh Amendment immunity applies to state officials when sued
in their official capacities. See Hafer v. Melo, 502 U.S. 21, 26
(1991); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989).
Calloway argues that defendants Cain and Stalder are
responsible for the conduct of their subordinates. Calloway is
effectively relying on a respondeat superior theory that is not
cognizable under § 1983. See Thompkins v. Belt, 828 F.2d 298,
303 (5th Cir. 1987). Calloway fails to show that Cain and
Stalder were personally involved in a constitutional deprivation
No. 05-30446
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or that their acts were causally connected to the constitutional
violation alleged. See id. at 304; Thompson v. Steele, 709 F.2d
381, 382 (5th Cir. 1983).
Calloway also argues that Emergency Medical Technicians
Carter and Cowan were deliberately indifferent and failed to
provide adequate medical care for a spider bite. Calloway’s
complaint shows that both defendants examined Calloway when he
sought medical attention on June 26, 2003, that Carter scheduled
him for a follow-up visit with the doctor the next day, and that
Cowan provided him with pain medication. Calloway makes no
allegation that either defendant was further involved in his
medical treatment. Calloway fails to show that the defendants
refused to treat him, ignored his complaints, or intentionally
treated him incorrectly. See Domino v. Texas Dep’t of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001). At most, he has
alleged a disagreement with the course of his treatment and a
claim for negligence, which are not cognizable. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Calloway has not addressed the district court’s dismissal of
his claims against defendants Veals and Lamana or his claim that
he was subject to an unfair disciplinary report. Accordingly,
those claims are deemed abandoned. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993). The district court’s judgment
is affirmed.
No. 05-30446
-4-
The district court’s dismissal of Calloway’s complaint for
failure to state a claim counts as a strike under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996). Calloway is cautioned 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 § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.