Pierson v. Gonzales, 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 19, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10251
Conference Calendar
BILLY G. PIERSON,
Plaintiff-Appellant,
versus
WILLIAM GONZALES; TEXAS TECH CORRECTIONAL MANAGED HEALTH
CARE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:03-CV-15-C
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Billy Pierson, Texas prisoner # 907177, appeals from the
district court’s dismissal with prejudice of his 42 U.S.C. § 1983
civil rights complaint for failure to state a claim for relief.
28 U.S.C. §§ 1915, 1915A. Pierson has filed motions to proceed
on appeal, to amend his brief, for appointment of counsel, and
to conduct discovery. His motion to amend his brief is GRANTED.
His motions to proceed on appeal, to appoint counsel, and to
conduct discovery are DENIED.

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No. 03-10251
-2-
Pierson argues that he underwent surgery that resulted in
the placement of a defective hip screw. Pierson contends that
the insertion of this device as well as the inclusion of false
documentation in his medical records constituted deliberate
indifference to his medical needs. The district court did not
err in concluding that Pierson’s claims rise only to the level
of medical malpractice or negligence, which is not actionable
under 42 U.S.C. § 1983. See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991). Pierson’s disagreement with his method
of treatment is also not cognizable under 42 U.S.C. § 1983.
See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).
Moreover, Pierson’s allegation of false documentation also fails
to state a cognizable 42 U.S.C. § 1983 claim.
Because Pierson’s claims lack legal merit, his appeal is
dismissed as frivolous. See Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983); 5TH CIR. R. 42.2. The district court’s dismissal
of the present case and our dismissal of this appeal count as
two strikes against Pierson for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
We caution Pierson 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) WARNING ISSUED.

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