Smallwood v. Lumpkins, 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opinion should not be published and is not precedent except under the limited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. 99-40672
Summary Calendar
SIMON SMALLWOOD,
Plaintiff-Appellant,
versus
DIRECTOR OF HEALTHCARE SERVICES TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION; JANET LUMPKINS; HERBERT L.
SCOTT; C. DINH, DR.,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-94-CV-734
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June 12, 2000
Before JOLLY, JONES and BENAVIDES, Circuit Judges.
PER CURIAM:*
Simon Smallwood, TDCJ-ID prisoner # 552407, appeals the
district court’s grant of summary judgment for the defendants in
his 42 U.S.C. § 1983 action against Janet Lumpkins, Unit Health
Care Administrator of the Ramsey I Unit; Dr. Dinh, Unit Physician;
and Herbert L. Scott, Ramsey I Head Warden.
In relation to Dr. Dinh, Smallwood argues that the doctor
did not follow the proper course of treatment. He states that
there was a pattern of inattentiveness and delays in receipt of his

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medications. He refers to his allegations in the district court
regarding his sick call requests about his urinary tract infection.
He argues that Dr. Dinh should have treated his infection with
antibiotics.
There is no indication in the medical records or Dr.
Dinh’s affidavit that Smallwood suffered from a urinary tract
infection on November 15, 1993. Smallwood complained of blood in
his urine, which Dr. Dinh assessed as possibly being related to
Smallwood’s prostate cancer. As noted by the district court, the
medical records showed that Smallwood had a history of prostate
cancer. In the face of Smallwood’s medical records, Smallwood’s
allegations against Dr. Dinh are merely a disagreement with the
doctor’s assessment of his condition. Smallwood points to no
summary judgment evidence which creates an issue for trial in
relation to Dr. Dinh. Celotex Corp. v. Catrett, 477 U.S. 317, 322-
24 (1986); Fed. R. Civ. P. 56(e).
Smallwood argues that the district court misstated his
allegations and abused its discretion in granting summary judgment
for Lumpkins. He points to no facts in the record to contradict
Lumpkins’ assertion that she had no responsibility for the staffing
of medical personnel. Smallwood may not rest on mere allegations
in his pleadings, but must instead produce affirmative evidence and
specific facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256-57 (1986). Smallwood’s arguments on appeal do not demonstrate
that he produced any facts in response to the summary judgment
motion which showed that Lumpkins was responsible for any harm he
allegedly suffered. Smallwood’s arguments present no basis to

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conclude that the district court erred in granting summary judgment
for Lumpkins on the ground of no personal involvement.
Smallwood argues that the district court erred in
granting summary judgment for Scott by overlooking the chronology
of events he set forth regarding Scott’s retaliatory motive. He
states that Scott’s intentions were to punish. He does not point
to any particular evidence in the record to support this
allegation. He does not dispute Scott’s assertion that his job in
the main building was the same as his job in the trusty camp.
Scott’s assertions in his affidavit that he moved Smallwood so that
Smallwood could have better access to medical care are a reasonable
explanation for the chronology of events alleged and have not been
contradicted by Smallwood with any direct evidence of the alleged
retaliatory motive.
The defendants met Smallwood’s allegations with summary
judgment evidence refuting his claims, and Smallwood rested on his
allegations. On appeal, he has not pointed to any summary judgment
evidence in the record which demonstrates the existence of a
material factual dispute. Smallwood’s appeal is without arguable
merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983). Because the appeal is frivolous, it is DISMISSED.
See 5th Cir. R. 42.2.
Smallwood is hereby informed that the dismissal of this
appeal as frivolous counts as a strike for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996) (“[D]ismissals as frivolous in the district courts or the
court of appeals count [as strikes] for the purposes of

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[§ 1915(g)].”). We caution Smallwood that once he accumulates
three strikes, he may not proceed IFP 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 AS FRIVOLOUS.

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