Robinson v. Ryan ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50634
Conference Calendar
ROBERT ROBINSON,
Plaintiff-Appellant,
versus
ROD RYAN, DR.; JIMMY STONE, Grievance Officer, McLennan
County Jail; JOHNNY MYNAR, Captain; MARSHA RODDY, also known
as NFN Marsh, Head Nurse; DARLENE LNU, Nurse,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CV-386
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December 13, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Robert Robinson, Texas prisoner #894530, seeks leave to
proceed in forma pauperis (IFP) following a certification
pursuant to 28 U.S.C. § 1915(a)(3) that his appeal is taken in
bad faith. We note initially that the district court relied in
part on evidence outside of the pleadings when dismissing
Robinson’s complaint for failure to state a claim. The dismissal
*
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that this opinion should not be published and is not precedent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. 00-50634
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operated as a grant of the defendants’ summary-judgment motion.
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1283-84 (5th Cir.
1990).
Robinson contends that some of the defendants were
deliberately indifferent to his serious medical needs; that jail
grievance procedures somehow were inadequate; and that telephone
policies violated his First Amendment rights. Robinson’s
allegations regarding his medical care suggest negligence at
most; he has failed to indicate a nonfrivolous issue regarding
medical care. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991). Robinson has failed to brief his grievance
contention for appeal. Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Robinson did not
complain in the district court about jail telephone policies. We
will not consider his contention, which was not raised in the
district court. Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999), cert. denied, 120 S. Ct. 982 (2000).
Robinson’s appeal is without arguable merit and is
frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
The dismissal of Robinson’s appeal counts as a “strike” for
purposes of 28 U.S.C. § 1915(g). Because the district court’s
dismissal for failure to state a claim acted as a grant of
summary judgment, the district court’s judgment does not count as
a “strike.” Robinson is cautioned that once he accumulates three
strikes, he will not be able to proceed IFP in any civil action
or appeal while he is imprisoned “unless [he] is under imminent
danger of serious physical injury.” § 1915(g).
No. 00-50634
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IFP DENIED. APPEAL DISMISSED. 5TH CIR. R. 42.2.