Ramsey v. Spoores , 185 F. App'x 329 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-10277
Summary Calendar
MICHAEL TODD RAMSEY,
Plaintiff-Appellant,
versus
LVN FNU SPOORES; DR. ADEL NAFRAWI;
SENIOR WARDEN FNU DUKE, Warden,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
No. 1:04-CV-00067
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Michael Ramsey, a Texas prisoner, appeals the magistrate
judge’s sua sponte order dismissing his pro se 42 U.S.C. § 1983civil rights action as frivolous pursuant to 28 U.S.C. §§ 1915A and
1915(e)(2)(B)(I), following a hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985). Ramsey alleged that defen-
*
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this opinion should not be published and is not precedent except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.
dants were deliberately indifferent to his serious medical needs
when defendant nurse Spoores caused an injury to his ear while
cleaning it on April 3, 2003, and the other defendants failed to
treat him. Following the Spears hearing, at which Ramsey was ques-
tioned about his allegations and about his prison medical records,
the magistrate judge determined that Ramsey was alleging only
negligence.
Ramsey argues that the magistrate judge abused his discretion
in dismissing his complaint as frivolous, in failing to grant him
an opportunity to amend his complaint, and by using his medical
records to counter his allegations. Although Ramsey has suggested
that Spoores intentionally damaged his ear by using the “wrong”
syringe attachment, the magistrate judge did not abuse his dis-
cretion in concluding that these allegations suggested only a non-
cognizable claim of negligent treatment. See Taylor v. Woods, 257
F.3d 470, 472 (5th Cir. 2001); Farmer v. Brennan, 511 U.S. 825,
839-40 (1994); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991).
The magistrate judge did not err in using Ramsey’s medical
records to elicit his admissions that a nurse Hodges had given him
medications and that Ramsey had been repeatedly treated by de-
fendant Dr. Nafrawi. See Banuelos v. McFarland, 41 F.3d 232, 235
(5th Cir. 1995); Wilson v. Barrientos, 926 F.2d 480, 481 & n.3 (5th
Cir. 1991). Finally, that Ramsey may have written two letters
about his medical treatment to defendant Warden Duke was insuffi-
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cient to establish the causal connection necessary to show that
Duke was personally liable. See Evett v. DETNTFF, 330 F.3d 681,
689 (5th Cir. 2003).
For the reasons discussed above, we affirm. The affirmance of
the dismissal of Ramsey’s complaint as frivolous counts as a
“strike” for purposes of the three-strikes provision, 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). Ramsey is cautioned that if he accumulates three strikes,
he will not be permitted 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 28 U.S.C. § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.
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