United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
F I L E D
FOR THE FIFTH CIRCUIT August 14, 2007
Charles R. Fulbruge III
Clerk
No. 06-11255
Summary Calendar
JOHNNY ALISON GRANT,
Plaintiff-Appellant,
versus
DR WYATT AUSTIN HOWELL, Medical Doctor, Price Daniel Unit; IRENE
CANALES, RN/PHSA, Price Daniel Unit; ANDY R MASSINGILL, Warden I,
Price Daniel Unit; WILLIAM F GRAY, Assistant Warden, Price Daniel Unit,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:06-CV-2
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Johnny Allison Grant, Texas prisoner # 1294325, appeals the dismissal of
his 42 U.S.C. § 1983 complaint as frivolous. Grant argues that (1) the
magistrate judge abused her discretion in denying his discovery request; (2) the
magistrate judge abused her discretion in dismissing his complaint as frivolous
after he paid the filing fee; (3) the defendants were deliberately indifferent to his
*
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should not be published and is not precedent except under the limited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. 06-11255
medical condition; and (4) he was falsely convicted in disciplinary proceedings
of refusing to work. We affirm.
We reject Grant’s contention that the magistrate judge abused her
discretion in refusing to grant his discovery request to obtain additional medical
records. Grant has not shown how additional discovery would have produced
further evidence to establish that his complaint was not frivolous. Krim v.
BancTexas Group, Inc., 989 F.2d 1435, 1441 (5th Cir. 1993).
We additionally reject Grant’s claim that his payment of the filing fee
precluded a dismissal of his complaint as frivolous. When Congress enacted the
Prison Litigation Reform Act of 1996, it specifically amended 28 U.S.C.
§ 1915(e)(2)(B)(i) to provide that a complaint filed by a prisoner could be
dismissed as frivolous “[n]otwithstanding any filing fee, or any portion thereof,
that may have been paid.” Therefore, Grant’s claims were subject to review
under § 1915(e) and dismissal as frivolous regardless whether he paid the filing
fee.
We hold that Grant has failed to make the required showing of deliberate
indifference to his medical needs. He has failed to submit evidence that prison
officials “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 and
citation omitted). Similarly, the record is devoid of evidence to support his
allegation that he was required to perform work that significantly aggravated
a serious medical condition. See Richardson v. Spurlock, 260 F.3d 495, 499 (5th
Cir. 2001). The dismissal of these claims as frivolous was not an abuse of
discretion. E.g., Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); Martin
v. Scott, 156 F.3d 578 (5th Cir. 1998).
Grant’s retaliation claim against Dr. Wyatt Howell is based on Grant’s
own personal beliefs and conclusional assertions, which are insufficient to raise
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No. 06-11255
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 v. Smith,
60 F.3d 1161, 1166 (5th Cir. 1995). Finally, Grant’s disciplinary conviction
claims are dismissed pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). See
Edwards v. Balisok, 520 U.S. 641, 648 (1997); Kutzner v. Montgomery County,
303 F.3d 339, 340-41 (5th Cir. 2002).
The magistrate judge’s dismissal of the § 1983 complaint counts as a strike
for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). Grant 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; SANCTIONS WARNING ISSUED.
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