Bradshaw v. Unknown Lieutenant ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10072
Summary Calendar
GARY L. BRADSHAW,
Plaintiff-Appellant,
versus
UNKNOWN LIEUTENANT, Texas Department of Criminal Justice Officer;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION
OFFICIALS, ADMINISTRATION; UNKNOWN MANUFACTURER OF CHEMICAL
AGENT; LESLIE WOODS, Warden; UNKNOWN NURSE, Allred Unit; UNIT
HEALTH ADMINISTRATOR, Allred Unit; A. MCNULTY, Officer; NFN
WILLS, Captain; NFN SMITH; JOHN DOE, #2, Step 2 Grievance
Person; JOHN DOE, #3, Step 3 Grievance Person; INTERNAL AFFAIRS
DEPARTMENT; CHIEF, Internal Affairs Division; TOMMY L. NORWOOD,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:00-CV-156-R
--------------------
August 21, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Gary L. Bradshaw, Texas prisoner # 413854, has filed a
motion for leave to proceed in forma pauperis (IFP) on appeal,
following the district court’s dismissal of his 42 U.S.C. § 1983
*
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that this opinion should not be published and is not precedent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. 02-10072
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action as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). By
moving for IFP status, Bradshaw is challenging the district
court’s certification that IFP status should not be granted on
appeal because his appeal is not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Bradshaw has not shown that he will raise a nonfrivolous
issue on appeal. Bradshaw alleged that the district court abused
its discretion in dismissing his claim that Norwood used
excessive force against him; he alleged that Norwood sprayed him
with mace when he refused to accept his new cell assignment
because he did not want to live with a white inmate. Bradshaw
alleged that he suffered burning eyes and skin for approximately
24 hours, twitching of his eyes, blurred vision, irritation of
his nose and throat, blistering of his skin, rapid heartbeat,
mental anguish, shock and fear as a result of the use of mace.
He has not shown that he suffered more than a de minimis injury
or that the force used by Norwood was objectively unreasonable
under the circumstances. See Williams v. Bramer, 180 F.3d 699,
703, clarified on reh’g, 186 F.3d 633, 634 (5th Cir. 1999); Ikerd
v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996).
Bradshaw argues that the district court abused its
discretion in dismissing as frivolous his claim that he was
denied adequate medical care after the use of mace. Bradshaw
acknowledges that the nurse examined him and determined that he
did not need medical care. His disagreement with the nurse’s
No. 02-10072
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assessment is insufficient to establish an unconstitutional
denial of medical care. See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991); Norton v. Dimazana, 122 F.3d 286, 292 (5th
Cir. 1997).
Bradshaw argues that the district court abused its
discretion in dismissing as frivolous his claim that prison
officials filed false disciplinary charges against him as a
result of this incident. Because Bradshaw has not shown that the
disciplinary action has been reversed, this claim is not
cognizable under 42 U.S.C. § 1983. See Edwards v. Balisok, 520
U.S. 641, 648 (1997); Heck v. Humphrey, 512 U.S. 477, 487 (1994).
Bradshaw argues that the manufacturer of the mace was
negligent because it designed a dangerous product without
adequate testing and without instructing prison officials
concerning how to use it or how to decontaminate people after it
had been used. Bradshaw’s claim is not cognizable under 42
U.S.C. § 1983 because the manufacturer is not a state actor and
because negligence does not give rise to a 42 U.S.C. § 1983
action. See Daniels v. Williams, 474 U.S. 327, 332-36 (1986);
Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir.
1994).
Because Bradshaw has not shown that the district court erred
in certifying that his appeal is not taken in good faith, his
request for IFP status is DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
No. 02-10072
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Bradshaw is cautioned that the district court’s dismissal of this
action and this court’s dismissal of this appeal both count as
“strikes” pursuant to 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Bradshaw is advised
that if he accumulates three strikes, he will be barred from
bringing a civil action or an appeal proceeding IFP unless he is
under imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g). Bradshaw is also advised to review any pending
pleadings or appeals to ensure that they do not raise any
frivolous claims. Bradshaw’s “motion for appointment of counsel
and additional time” is also DENIED.