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Ingram v. Alvarado ( 2021 )


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  • Case: 19-40135     Document: 00515782017         Page: 1     Date Filed: 03/16/2021
United States Court of Appeals
for the Fifth Circuit                              United States Court of Appeals
Fifth Circuit
FILED
March 16, 2021
No. 19-40135                          Lyle W. Cayce
Summary Calendar                             Clerk
Darrell Ingram,
Plaintiff—Appellant,
versus
Melanie Alvarado; Stephen Martin,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:17-CV-32
Before Owen, Chief Judge, and Haynes and Costa, Circuit Judges.
Per Curiam:*
Darrell Ingram, Texas prisoner # 807074, appeals the dismissal of his
    42 U.S.C. § 1983
     complaint under Federal Rule of Civil Procedure 12(b)(6)
and
    28 U.S.C. § 1915
    (e)(2)(B) as frivolous and for failure to state a claim.
Ingram argues that he alleged sufficient facts to state a claim of deliberate
*
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opinion should not be published and is not precedent except under the limited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: 19-40135      Document: 00515782017            Page: 2   Date Filed: 03/16/2021
No. 19-40135
indifference to his serious medical needs. Specifically, Ingram contends that
he alleged that he was swollen and that his condition was deteriorating. He
argues that his kidney failure was the result of Melanie Alvarado failing to
attribute his condition to the medication prescribed. He also contends that
Stephen Martin incorrectly told him that the pain he was experiencing was
the result of a strained muscle.
We review de novo the district court’s dismissal. See Geiger v. Jowers,
    404 F.3d 371
    , 373 (5th Cir. 2005); Harris v. Hegmann,
    198 F.3d 153
    , 156 (5th
Cir. 1999).   At most, Ingram’s claims regarding Alvarado’s actions in
prescribing medication and Martin’s actions in attributing his pain to a
strained muscle amounted to allegations of negligence or medical
malpractice, and such allegations do not establish a claim of deliberate
indifference. See Varnado v. Lynaugh,
    920 F.2d 320
    , 321 (5th Cir. 1991);
Domino v. Tex. Dep’t of Criminal Justice,
    239 F.3d 752
    , 756 (5th Cir. 2001).
Accordingly, the district court’s judgment is AFFIRMED. The
dismissal of his complaint by the district court counts as a strike under
    28 U.S.C. § 1915
    (g). See Adepegba v. Hammons,
    103 F.3d 383
    , 388 (5th Cir.
1996), abrogated in part on other grounds by Coleman v. Tollefson,
    135 S. Ct. 1759
    , 1762-63 (2015). Ingram is WARNED that, once he accumulates three
strikes, 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).
2