Hartfield v. Cherian, et al

* 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40549
Summary Calendar
MALTIE HARTFIELD,
Plaintiff-Appellant,
versus
FRANCIS CHERIAN, DR.;
R. L. BEHRNS, DR.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:00-CV-317
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March 22, 2002
Before JOLLY, JONES and STEWART, Circuit Judges:
PER CURIAM:*
Maltie Hartfield, Texas prisoner # 625348, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a
claim. See 28 U.S.C. § 1915(e). Hartfield argues that the district court erred when it concluded that
he failed to state a claim for deliberate indifference to a serious medical condition. He also argues
that the district court erred when it concluded that he failed to state a claim of retaliation.
Hart field’s allegations that Dr. Behrns and Dr. Cherian were deliberately indifferent fail to
state a cognizable § 1983 claim because he alleges, at best, mere negligence. See Mendoza v.
Lynaugh, 989 F.2d 191, 193, 195 (5th Cir. 1993). He has not alleged that any delay in being referred

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by Dr. Behrns to a specialist was caused by deliberate indifference. Id. With regard to treatment by
Dr. Cherian, Hartfield merely disagrees with the diagnosis and adequacy of treatment, which is
insufficient to state a constitutional claim. See Estelle v. Gamble, 429 U.S.. 97, 106-07 (1976).
Hartfield also has failed to state a constitutional claim for retaliation. He has alleged only a
“personal belief” that he was transferred to a different prison unit in retaliation for his complaints
about medical treatment. A mere personal belief that he is the victim of retaliation is inadequate to
state a § 1983 claim. See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).
Hartfield’s appeal has no arguable basis in law or fact; therefore, it is DISMISSED as
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The district
court’s dismissal under 28 U.S.C. § 1915 counts as a strike against Hartfield. See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). This court’s dismissal counts as another strike. Id.
If Hartfield accumulates three strikes, he may not proceed in forma pauperis in any civil action or
appeal while he is incarcerated or detained in any facility unless he is in imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
DISMISSED; SANCTIONS WARNING ISSUED.

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