Broussard v. Flattery , 169 F. App'x 209 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-30827
Conference Calendar
WARREN BROUSSARD,
Plaintiff-Appellant,
versus
JAMES ANTHONY FLATTERY; NICHOLAS PASAO,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:05-CV-921
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Warren Broussard, federal prisoner # 08686-035, appeals
the district court’s dismissal of his Bivens** action as
frivolous and for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii). Broussard has filed a motion to
proceed in forma pauperis (IFP) on appeal, challenging the
district court’s certification that his appeal was not taken in
good faith pursuant to Baugh v. Taylor, 117 F.3d 197, 199-202
*
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this opinion should not be published and is not precedent except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.
**
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
No. 05-30827
-2-
(5th Cir. 1997). He has also filed a motion for appointment of
counsel, which is denied.
Broussard argues that the district court made assumptions
that were not based on the record, but he does not state to which
assumptions he is referring. He contends that the district court
did not consider the pleadings in the light most favorable to
him. Broussard contends that the defendants have demonstrated
complete indifference to his medical needs. He argues that the
district court’s dismissal was based on unsworn and unbelievable
responses in the administrative process record. Broussard does
not provide any specifics concerning which parts of the medical
and administrative records, which were attached by Broussard to
his complaint in support of his complaint, were supposedly
“unbelievable.”
The exhibits demonstrate, as the district court so noted,
that Broussard received treatment for his knee on an ongoing
basis, including several MRI’s and an orthopedic consultation.
The orthopedist recommended that Broussard was not a candidate
for surgery because he was too young and recommended conservative
treatment. Broussard received medication for pain. The district
court correctly concluded that Broussard’s claim amounted to no
more than a disagreement with his medical treatment. See Varnado
v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
The district court’s certification that Broussard’s appeal
is not taken in good faith is upheld, Broussard’s motion for IFP
No. 05-30827
-3-
is denied, and this appeal is dismissed as frivolous. See Baugh,
117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
Broussard is hereby informed that the dismissal of this
appeal as frivolous counts as a strike for purposes of 28 U.S.C.
§ 1915(g), in addition to the strike for the district court’s
dismissal. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996) (“[D]ismissals as frivolous in the district courts or the
court of appeals count [as strikes] for the purposes of
[§ 1915(g)].”). We caution Broussard that once he accumulates
three strikes, he may not proceed IFP 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).
IFP AND APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED AS
FRIVOLOUS; SANCTION WARNING ISSUED.