Earl v. Dretke , 177 F. App'x 440 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 26, 2006
Charles R. Fulbruge III
Clerk
No. 05-10548
Summary Calendar
ROBERT LEE EARL,
Plaintiff-Appellant,
versus
DOUG DRETKE; D. COLE; NFN DENDY;
NFN McDONALD; NFN LACY, Doctor,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:04-CV-290
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Before REAVLEY, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Robert Lee Earl, Texas prisoner #599178, appeals from the
dismissal of his 42 U.S.C. § 1983 action in part as frivolous, in
part for failure to state a claim, and in part for failure to
exhaust administrative remedies. Earl contends that his
excessive-force claim against defendant Dendy was nonfrivolous
because he lost a fingernail and experienced bleeding and
swelling of his other fingers; that all he was required to show
regarding defendant McDonald was that McDonald was deliberately
*
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this opinion should not be published and is not precedent except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. 05-10548
-2-
indifferent to his serious medical needs by refusing to take him
to the infirmary after Dendy injured him; that the district court
erred by finding that he failed to pursue grievances regarding
Dr. Lacy’s failure to treat his hand; that he was not required to
file grievances regarding his claim that Dretke and Cole failed
to train Dendy and McDonald because the use-of-force policy
speaks for itself; and that the district court erred by
dismissing his complaint without allowing him to amend it to cure
any defects.
Earl’s allegations do not suggest that the injuries he
suffered were anything more than de minimis. See Baldwin
v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998). The dismissal of
his claim against Dendy as frivolous therefore was not an abuse
of discretion. See Siglar v. Hightower, 112 F.3d 191, 193 (5th
Cir. 1997).
Because any harm to Earl was de minimis, the district court
did not err by determining that Earl could not state a claim that
McDonald was deliberately indifferent in failing to take him to
the infirmary to be treated for that de minimis harm. See, e.g.,
Flores v. City of Palacios, 381 F.3d 391, 398 n.6 (5th Cir.
2004).
Regarding the district court’s dismissal of his claim
against Dr. Lacy, Earl alleges that he informed the district
court that his grievance was not returned and that he would have
to seek a copy of it in discovery.
No. 05-10548
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The processed step-one and step-two grievances regarding Dr.
Lacy that Earl submitted to the district court had nothing to do
with his hands and fingers. He stated that he wrote a sick-call
request that was denied, that the infirmary would not return
those requests, and that he would need to obtain information from
Dr. Lacy during discovery. Earl did not allege that he could not
obtain copies of his grievances regarding his efforts to obtain
medical treatment. Earl’s contention that the district court
erred by dismissing his claim against Dr. Lacy for failure to
exhaust therefore is unconvincing. See Powe v. Ennis, 177 F.3d
393, 394 (5th Cir. 1999).
Earl raises his contention that he need not exhaust remedies
against defendants Dretke and Cole for the first time on appeal,
and this court need not consider it. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Moreover, Earl
makes no allegations indicating that he failed to plead his best
case in the district court; the district court therefore did not
err by dismissing his complaint without giving him an opportunity
to amend it. See Jacquez v. Procunier, 801 F.2d 789, 792 (5th
Cir. 1986).
Earl’s appeal is without arguable merit and is dismissed as
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5TH CIR. R. 42.2. The district court’s dismissal of Earl’s
action and this court’s dismissal of his appeal each count as a
strike against Earl for purposes of 28 U.S.C. § 1915(g).
No. 05-10548
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Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We
previously dismissed one of Earl’s appeals as frivolous. Earl v.
Officer Johnson, No. 94-10724 (5th Cir. Mar. 23, 1995)
(unpublished). Earl thus has three strikes, and we warn him that
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).
Earl’s motion for appointment of counsel is DENIED.
APPEAL DISMISSED; 28 U.S.C. § 1915(g) SANCTION IMPOSED;
MOTION DENIED.