Smith v. Allen

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 15, 2008
No. 07-20575
Summary Calendar Charles R. Fulbruge III
Clerk

CARY O SMITH

Plaintiff-Appellant

v.

DR STANLEY D ALLEN

Defendant-Appellee

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CV-2028

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Cary O. Smith, Texas prisoner # 732505, appeals the dismissal of his 42
U.S.C. § 1983 action against Stanley D. Allen, a doctor with the University of
Texas Medical Branch. Smith asserted that Allen denied him proper medical
treatment in violation of his constitutional rights. The district court held that
Smith’s allegations failed to state a claim on which relief could be granted and
dismissed the action pursuant to 28 U.S.C. § 1915(e)(2)(B).

*
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should not be published and is not precedent except under the limited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. 07-20575

Smith argues that the district court erred by: dismissing his complaint
without holding a hearing; citing a prior unsuccessful civil rights action that he
had brought; not allowing discovery; and determining that he had not
established deliberate indifference to his serious medical needs. Smith admits
that he has had two surgeries for his shoulder condition and states that these
surgeries were not successful in alleviating his problems. His assertion that
Allen denied him medical treatment is based on Allen’s determination that
Smith is not a candidate for additional shoulder surgery. Smith’s disagreement
with this determination is insufficient to establish a constitutional violation. See
Farmer v. Brennan, 511 U.S. 825, 839-41, 847 (1994); Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991).
Smith’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is
dismissed. See 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous counts
as a strike under § 1915(g), as does the district court’s dismissal of Smith’s
complaint. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Because Smith’s prior action in Smith v. Largent, H-02-CV-1489 (S.D. Tex.
2003), was dismissed for failure to state a claim, he now has accumulated three
strikes. § 1915(g). Accordingly, Smith is barred from proceeding IFP in any civil
action or appeal filed while he is detained or incarcerated in any facility unless
he “is under imminent danger of serious physical injury.” § 1915(g); see
Adepegba, 103 F.3d at 387-88.
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.

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