United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS June 14, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-40448
Summary Calendar
STEVIE WINSTON,
Plaintiff-Appellant,
versus
DAVID STACKS, Sr. Warden; G. WAKEFIELD, Asst. Warden;
FRANKIE REESCANO, Asst. Warden; UNIDENTIFIED COOPER, Lt.;
UNIDENTIFIED RAINS, Sgt.; KELLIE WARD, Asst. Admin.;
RUSSELL B. BAILEY, Asst. Admin.; GUY SMITH, Asst. Admin.;
SHANTA CRAWFORD, Practice Manager; DR. BETTY WILLIAMS;
CHESTER JONES, PA; BRENDA HOUGH, PA; CATHI BLAKE,
Nurse Clinician, II; LVN GENGER GALLOWAY; JOSE AGUILERA,
CMA; DOUG DRETKE, DIRECTOR TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; OFFICE OF
THE ATTORNEY GENERAL OF TEXAS,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(99:05-CV-141)
_________________________________________________________________
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Stevie Winston appeals the district court’s 28 U.S.C. § 1915A
dismissal, for failure to state a claim, of his 42 U.S.C. § 1983
*
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this opinion should not be published and is not precedent except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.
action against various prison officials, asserting deliberate
indifference to his serious medical needs. Winston renews his
claim that the defendants were deliberately indifferent to his
serious medical needs by assigning him work that violated his
medical restrictions and for disciplining him when he was unable to
perform that work. He maintains he pleaded all essential elements
of an Eighth Amendment violation and that dismissal for failure to
state a claim was therefore in error.
Section 1915A allows for dismissal of a prisoner’s civil
action if, inter alia, it is frivolous or fails to state a claim
for relief. 28 U.S.C. § 1915A(b)(1). A district court may dismiss
a complaint as frivolous “‘where it lacks an arguable basis either
in law or in fact’”. Denton v. Hernandez, 504 U.S. 25, 31 (1992)
(internal citations omitted). A dismissal for failure to state a
claim for relief will be upheld “only if, taking the plaintiff’s
allegations as true, it appears that no relief could be granted
based on the plaintiff’s alleged facts”. Bass v. Parkwood Hosp.,
180 F.3d 234, 240 (5th Cir. 1999). Because Winston’s complaint was
dismissed as both frivolous and for failure to state a claim,
review is de novo. See Velasquez v. Woods, 329 F.3d 420, 421 (5th
Cir. 2003).
Winston has not alleged, and the records do not show, that his
medical condition was aggravated, or that he suffered any injury or
harm, as a result of his work assignment. Therefore, even if his
2
allegations are accepted as true, he has failed to allege the
requisite claim of “deliberate indifference” in connection with his
work assignment. See Farmer v. Brennan, 511 U.S. 825, 828 (1994)
(“A prison official’s ‘deliberate indifference’ to a substantial
risk of serious harm to an inmate violates the Eighth Amendment.”);
Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989) (an Eighth
Amendment violation results when the type of work assigned worsens
a prisoner’s pathological condition).
Because of Winston’s medical condition, medical personnel
placed restrictions on his prison job assignment; the record shows
they were responsive to his physical limitations and placed him on
a medical work squad because of these limitations. Winston claims,
however, that medical personnel should have imposed even stricter
limits on his job assignment. Winston’s disagreement with his
medical classification does not state a constitutional claim. See
Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992). In this
regard, his claim that the documents contained in the
administrative record are fraudulent will not be considered because
it is raised for the first time on appeal. See Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991).
As the district court determined, the fact that Winston was
required to work does not raise a constitutional claim for
deliberate indifference. See Mendoza v. Lynaugh, 989 F.2d 191, 195
(5th Cir. 1993). Furthermore, prison officials also did not
3
violate his constitutional rights by disciplining him for refusing
to work. See id.; Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir.
1988). Additionally, Winston’s assertion that the district court
erred in dismissing his case without providing him with notice and
the opportunity to amend is unavailing because he does not state on
appeal any facts he would have included in an amended complaint
that might have changed the outcome in his case. See Ashe v.
Corley, 992 F.2d 540, 542 (5th Cir. 1993).
Winston renews his contention that the defendants were
deliberately indifferent in failing to provide adequate medical
care, but, as he concedes and as the administrative record shows,
he received medical attention on the numerous occasions he
requested it. His dissatisfaction with the treatment he received
is insufficient to state a constitutional claim. See Varnado, 920
F.2d at 321. Winston’s new assertion that he has been denied
better and more extensive medical care due to cost will not be
considered. See id. Moreover, his allegations in that regard are
wholly conclusional and do not give rise to a constitutional claim.
See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Although the judgment is affirmed, it incorrectly states that
the complaint was dismissed pursuant to 42 U.S.C. § 1997A, rather
than 28 U.S.C. § 1915A. The error is clerical and did not affect
the substance of the dismissal of the complaint. Nevertheless, the
4
matter is remanded to the district court for the limited purpose of
correcting the clerical error. See FED. R. CIV. P. 60(a).
The district court’s dismissal of Winston’s complaint counts
as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Winston is cautioned
that if he accumulates three strikes under § 1915(g), he will not
be able 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; REMANDED FOR CORRECTION OF CLERICAL ERROR; THREE-
STRIKES WARNING ISSUED.
5