Sowell v. Estelle Med Dept ( 2022 )

Case: 21-20603 Document: 00516427582 Page: 1 Date Filed: 08/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 10, 2022
No. 21-20603 Lyle W. Cayce
Summary Calendar Clerk
Kenneth Sowell,
Plaintiff—Appellant,
versus
Estelle Medical Department,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-3114
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Kenneth Sowell, an inmate in custody of the Texas Department of
Criminal Justice, brought a Section 1983 suit against the Estelle Medical
Department for being deliberately indifferent to his serious medical needs.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-20603
The district court dismissed the complaint with prejudice as legally frivolous
and for failure to state a claim. We AFFIRM.
Sowell alleges he slipped and fell in the shower when his knee gave out
in August 2018. He alleges that, because of the fall, he suffered a severe
injury to his neck. He contends he sent a “sick call” to the Estelle Medical
Department to report his injuries and request a provider. Despite his call, he
alleges he was not seen by a provider for 33 days. When he was finally seen,
the nurse practitioner gave him pain medication but did not physically
examine him. The nurse practitioner requested a cervical spine magnetic
resonance imaging examination, but the test was not performed.
Sowell filed suit, proceeding in forma pauperis, under 42 U.S.C. § 1983against the Estelle Medical Department. He alleges the defendant was
deliberately indifferent to his serious medical needs in violation of the Eighth
Amendment by failing to see him, then later treat him, in a timely manner.
He also alleges the Estelle Medical Department violated the Americans with
Disabilities Act by failing to treat his injuries. He seeks compensatory
damages and unspecified injunctive relief.
Because Sowell proceeded in forma pauperis, the district court
scrutinized the complaint to determine whether, in whole or in part, the
action was frivolous, was malicious, failed to state a claim, or sought
monetary relief from a defendant who is immune. See 28
U.S.C. §§ 1915(e)(2)(B), 1915A(b). The district court dismissed the
complaint with prejudice as frivolous and for failure to state a claim. Sowell
timely appealed.
We give de novo review to the dismissal of an in forma pauperis prisoner
civil rights suit for failure to state a claim under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(ii). Colvin v. LeBlanc, 2 F.4th 494, 497 (5th Cir. 2021);
DeMarco v. Davis, 914 F.3d 383, 386 (5th Cir. 2019). That means we take
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“‘the facts alleged in the complaint as true and view them in the light most
favorable to’ the plaintiff.” Colvin, 2 F.4th at 497 (quoting Green v. Atkinson,
623 F.3d 278, 280 (5th Cir. 2010) (per curiam)) (alteration omitted). We
review the dismissal of a complaint as frivolous under Section
1915(e)(2)(B)(i) for an abuse of discretion. Velasquez v. Woods, 329 F.3d 420,
421 (5th Cir. 2003) (per curiam). Pro se pleadings like Sowell’s are liberally
construed. See Colvin, 2 F.4th at 497.
Sowell argues that the district court erred by dismissing the complaint
as frivolous. The district court dismissed the complaint after finding that the
complaint duplicated allegations made in two pending lawsuits earlier filed
by Sowell. “[I]t is ‘malicious’ for a pauper to file a lawsuit that duplicates
allegations of another pending federal lawsuit by the same plaintiff.” Pittman
v. Moore, 980 F.2d 994, 995 (5th Cir. 1993). Though the district court
concluded the complaint was frivolous, it did so because it concluded the
complaint was malicious. Under Section 1915(e)(2)(B)(i), an in forma
pauperis complaint may be dismissed if the action “is frivolous or malicious.”
We see no error in the district court’s decision to dismiss.
Sowell also argues that the district court erred in concluding that his
complaint failed to state a cognizable claim. The district court held that
Sowell failed to establish that the only named defendant, the Estelle Medical
Department, had the capacity to be sued. To have the capacity to be sued, a
government department or political entity “must enjoy a separate legal
existence.” Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 1991)
(quotation marks and citation omitted); see also FED. R. CIV. P. 17(b).
Sowell does not argue, and alleges no facts from which we may infer, that the
Estelle Medical Department enjoys a separate legal existence and has the
capacity to be sued. The district court did not err in dismissing Sowell’s
claims.
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We also reject Sowell’s other arguments. Because the district court
did not err in concluding Sowell’s complaint was malicious, it did not err in
concluding that the dismissal counted as a “strike” for purposes of
28 U.S.C. § 1915(g). Section 1915(g) applies to a complaint that is “frivolous,
malicious, or fail to state a claim.” Likewise, the district court did not err in
declining to grant Sowell leave to amend his complaint because it concluded
that his complaint was malicious.
AFFIRMED.
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