Fonseca v. Kuykendall, 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this opinion should not be published and is not precedent except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. 01-40962
Summary Calendar
DANIEL FONSECA,
Plaintiff-Appellant,
versus
K. KUYKENDALL; MARY GOTCHER; JOHN EATON; OWEN J. MURRAY; JASON
CALHOUN; ROBERT A. BROCK; UNIDENTIFIED REEDING, Doctor; MELTON
BROWN; DON JOHNSON; UNIVERSITY OF TEXAS MEDICAL BRANCH GALVESTON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CV-172
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March 21, 2002
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Daniel Fonseca, Texas prisoner #579623, appeals the district
court’s denial of several motions, including his requests for
injunctive relief. He also challenges the dismissal as frivolous
of his 42 U.S.C. § 1983 complaint alleging deliberate
indifference to his serious medical needs. Fonseca has failed to
adequately brief his argument that the court abused its
discretion in denying injunctive relief. He simply asserts that
the denial was error in light of (1) his 77 exhibits (the

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contents of which he does not discuss), and (2) his continuing
pain. Fonseca fails to address the district court’s reasons for
denial of his motions for injunctive relief, i.e., that he failed
to show a substantial likelihood of success on the merits of his
claim or that he faced a substantial threat of irreparable
injury. The argument is therefore waived. See Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993).
Fonseca’s argument that the magistrate judge erred in
denying his motions for appointment of counsel is without merit.
Fonseca has failed to show the requisite exceptional
circumstances. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
Cir. 1982).
Fonseca has failed to adequately brief his assertion that
the magistrate judge erred in refusing to admit into evidence all
of his medical records. Other than this assertion, he makes no
legal argument. The argument is therefore waived. See Yohey,
985 F.2d at 225. As for the denial of his “motion for the court
to disclose if exhibits were admissible in evidence,” the
magistrate judge did not err in denying Fonseca’s motion on the
basis that granting it would be the equivalent of an advisory
opinion.
While Fonseca is correct that his motion for default
judgment was not ruled upon, the court’s failure to rule may be
viewed as an implicit denial of the motion. See Mason v. Lister,
562 F.2d 343, 345 (5th Cir. 1977). The subsequent dismissal of
Fonseca’s complaint as frivolous was an implicit determination
that Fonseca was not entitled to default judgment even if the

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** Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
defendants were technically in default. See id. Fonseca’s
challenge to the magistrate judge’s statement that defendants
Johnson, Calhoun, Eaton, and Murray had filed an answer on
January 12, 2001, is unsupported by the record. Those defendants
did file an answer on January 12, 2001.
Fonseca argues that the defendants were deliberately
indifferent to his serious medical needs by denying his request
to be examined by a colon specialist to determine whether he
needed surgery for his hemorrhoids and to evaluate the need for
treatment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Fonseca’s pleadings and the testimony at the Spears** hearing
revealed that Fonseca was treated by medical personnel and was
supplied with hemorrhoid cream even though examinations by
medical staff revealed no hemorrhoids existed. Fonseca has not
shown deliberate indifference to his serious medical needs. See
Farmer v. Brennan, 511 U.S. 825, 847 (1994); Norton v. Dimazana,
122 F.3d 286, 291-92 (5th Cir. 1997). Insofar as Fonseca is
complaining about medical care and treatment that he received,
his allegations merely reflect his disagreement with the medical
tests and treatment ordered by the medical staff. The district
court did not abuse its discretion in dismissing his complaint as
frivolous. See Norton, 122 F.3d at 292.
Fonseca’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.

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R. 42.2. The dismissal of this appeal and the dismissal as
frivolous and by the district court each count as a “strike” for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). We caution Fonseca 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; SANCTIONS WARNING ISSUED.

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