Serrano v. Comstok-King ( 2021 )

Case: 19-50667 Document: 00515775872 Page: 1 Date Filed: 03/11/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 11, 2021
No. 19-50667
Summary Calendar Lyle W. Cayce
Clerk
Rosa Serrano,
Plaintiff—Appellant,
versus
Mary Comstok-King, Warden, Texas Department of Criminal Justice;
Brenda Hoover, Nurse Practitioner,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CV-163
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Rosa Serrano, Texas prisoner # 2151723, appeals the district court’s
dismissal of her 42 U.S.C. § 1983 complaint for failure to state a claim
pursuant to 28 U.S.C. § 1915(e). First, she argues the district court erred in
*
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opinion should not be published and is not precedent except under the limited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.
Case: 19-50667 Document: 00515775872 Page: 2 Date Filed: 03/11/2021
No. 19-50667
dismissing her complaint sua sponte without allowing her to amend it or
issuing a summons to the defendants. The district court gave her an
opportunity to amend her complaint when it ordered her to file a more
definite statement by answering a questionnaire. See Eason v. Thaler, 14 F.3d
8, 9 (5th Cir. 1994). Further, the district court did not err by dismissing
Serrano’s complaint prior to service on the defendants and without requiring
the defendants to file an answer. See § 1915(e)(2)(B); Brewster v. Dretke, 587
F.3d 764, 769 n.3 (5th Cir. 2009); Wilson v. Barrientos, 926 F.2d 480, 482 (5th
Cir. 1991).
Next, Serrano asserts Hoover was deliberately indifferent to her
serious medical needs because she cancelled all but one of her prescriptions
and removed the medical restrictions on her work assignment after finding
she did not have a back injury. The district court did not err in dismissing
Serrano’s claim for failure to state a claim under § 1915(e). See Legate v.
Livingston, 822 F.3d 207, 209-10 (5th Cir. 2016). Serrano’s allegations
against Hoover amount at most to negligence or medical malpractice, which
is insufficient to constitute deliberate indifference. See Gobert v. Caldwell,
463 F.3d 339, 345-46 (5th Cir. 2006).
Serrano also contends she was falsely charged with attempted escape
and refusal to work due to her back injury and that she was denied due process
in the disciplinary proceedings. She also argues Comstok-King personally
evaluated her disciplinary cases. Because Serrano has not shown that her
disciplinary convictions have been set aside, the district court did not err in
dismissing this claim. See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997);
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Finally, Serrano argues the district court erred because it did not rule
on her habeas claims, and she reasserts her habeas claims. The district court
did not abuse its discretion in severing the claims challenging her
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No. 19-50667
incarceration and seeking monetary damages against additional defendants
not named in her original complaint. See Applewhite v. Reichhold Chems., Inc.,
67 F.3d 571, 574 (5th Cir. 1995); Fed. R. Civ. P. 21. These claims were
unrelated to the § 1983 claims raised in her original complaint. Further,
claims challenging incarceration are properly raised in habeas applications.
See Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); Cook v. Texas Dep’t of
Criminal Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994).
For these reasons, the district court’s judgment is AFFIRMED.
Serrano’s motions are DENIED. We CAUTION Serrano that if she
accumulates three strikes, she will not be able to proceed in forma pauperis
in any civil action or appeal filed while she is incarcerated or detained in any
facility unless she is under imminent danger of serious physical injury. See
§ 1915(g).
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