Ducksworth v. MacMurdo, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 20-30106
Summary Calendar

AKANDO DUCKSWORTH,

Plaintiff−Appellant,

versus

HAL MACMURDO, Head Doctor at Dixon Correctional Institute;
JASON KENT, Warden, Dixon Correctional Institute;
CHERRYL WASHINGTON, ARP Screening Officer,

Defendants−Appellees.

Appeal from the United States District Court
for the Middle District of Louisiana
No. 3:18-CV-1005

Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM:
*

Akando Ducksworth, Louisiana prisoner #714207, moves to proceed in

*
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should not be published and is not precedent except under the limited circumstances set forth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 5
TH CIRCUIT RULE 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
June 12, 2020

Lyle W. Cayce
Clerk
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forma pauperis (“IFP”) on appeal from the dismissal of his 42 U.S.C. § 1983
complaint. Ducksworth asserted that the defendants were deliberately indif-
ferent to his serious medical needs related to conditions that affect his ability
to speak and that cause pain in his neck. On the defendants’ motion, the
district court dismissed for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).
By moving to proceed IFP, Ducksworth is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into good faith “is limited to
whether the appeal involves legal points arguable on their merits (and there-
fore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted). We review de novo a dismissal under
Rule 12(b)(6). See McLin v. Ard, 866 F.3d 682, 688 (5th Cir. 2017).
As to defendants Kent and Washington, the district court determined
that Ducksworth’s allegations did not establish their participation in the
alleged denial of medical care. A defendant “must be either personally involved
in the acts causing the deprivation of a person’s constitutional rights, or there
must be a causal connection between an act of the [defendant] and the consti-
tutional violation sought to be redressed.” Lozano v. Smith, 718 F.2d 756, 768
(5th Cir. 1983). Ducksworth’s complaint shows that his factual allegations do
not demonstrate the personal involvement of these defendants in the alleged
denial of medical care or a causal connection between their acts and the alleged
denial of medical care. See id. Ducksworth has failed to demonstrate that his
appeal involves legal points arguable on the merits insofar as it concerns Kent
and Washington. See Howard, 707 F.2d at 220.
As to his claim against Dr. MacMurdo, Ducksworth likewise fails to
make the requisite showing. See id. According to his complaint, Ducksworth
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received speech therapy at the University Medical Center (“UMC”) for several
months, but that therapy was ineffective in dealing with his voice problems,
and a doctor at UMC concluded that more therapy would not restore Ducks-
worth’s voice. Although UMC offered to provide additional therapy to help
alleviate Ducksworth’s neck pain, MacMurdo decided against that course of
action and instead treated Ducksworth with Ibuprofen and throat lozenges; he
also prescribed muscle relaxers and throat exercises. Even if the treatment
chosen by MacMurdo was unsuccessful, the facts alleged do not establish delib-
erate indifference. See Varnado, 920 F.2d at 321. Although Ducksworth dis-
agrees with MacMurdo’s decision not to send him to UMC for more therapy, a
prisoner’s disagreement with his medical treatment is not sufficient to state a
claim under § 1983. See id. Further, even if MacMurdo did not follow the
treatment recommendation of another physician, that does not establish delib-
erate indifference. See Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999).
The appeal lacks arguable merit and is therefore frivolous. See Howard,
707 F.2d at 220. Accordingly, the motion for leave to proceed IFP on appeal is
DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d
at 202 n.24; 5
TH CIR. R. 42.2. Ducksworth’s motion for appointment of counsel
is also DENIED because this case does not present exceptional circumstances
warranting it. See Cooper v. Sheriff, Lubbock Cty., Tex., 929 F.2d 1078, 1084
(5th Cir. 1991).
The district court’s dismissal of Ducksworth’s § 1983 action for failure to
state a claim and this court’s dismissal of the instant appeal as frivolous both
count as strikes for purposes of 28 U.S.C. § 1915(g). See Coleman v. Tollefson,
135 S. Ct. 1759, 1763−64 (2015); Adepegba v. Hammons, 103 F.3d 383, 388 (5th
Cir. 1996), abrogated in part on other grounds by Coleman, 135 S. Ct.
at 1762-63. Ducksworth is WARNED that if he accumulates three strikes, he
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will not be able to 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 § 1915(g).
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