Pointer v. Johnson, 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that this opinion should not be published and is not precedent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. 02-10819
Conference Calendar
ALVIN TODD POINTER,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION; JOHN MIDDLETON UNIT, MEDICAL
FACILITY; JIM RUDD UNIT MEDICAL FACILITY; GONZALEZ, Doctor,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CV-181-BG
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February 19, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alvin Todd Pointer appeals the magistrate judge’s dismissal
with prejudice in part, and the dismissal without prejudice for
failure to exhaust, of his 42 U.S.C. § 1983 claims regarding
medical treatment and work assignment. In light of his receipt
of physical therapy for five months, surgery on his shoulder, and
reinstatement of medical restrictions, he cannot claim deliberate

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No. 02-10819
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indifference to his medical needs. See McCormick v. Stalder, 105
F.3d 1059, 1061 (5th Cir. 1997). In fact, he refers to the
hospital’s “negligence,” for which 42 U.S.C. § 1983 relief is
unavailable. Daniels v. Williams, 474 U.S. 327 (1986).
Insofar as Pointer is arguing that his lack of medical
restrictions was unconstitutional, this amounts, at most, to a
claim of negligence. See Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991). Such allegations do not amount to deliberate
indifference to his serious medical needs. Id. The district
court did not err in dismissing Pointer’s claims regarding
disagreement with his classification.
Pointer’s assertion that he filed a grievance refers to the
grievance filed in January 2001. Although it does not mention
the hoe squad, the work assignment of which he complained, it
does mention work in the fields during the same period. Assuming
that the hoe squad and the fields are the same or related work
assignments, the magistrate judge erred in finding that Pointer
failed to file any grievances concerning his assignment to the
hoe squad prior to June 2001. Nonetheless, as Pointer has failed
to show that prison officials knew that work assignment would
significantly aggravate his shoulder condition, he has failed to
show a violation of the Eighth Amendment. Jackson v. Cain, 864
F.2d 1235, 1246 (5th Cir. 1989).
Pointer’s claim that the missing pages of his medical file
was a constitutional violation is frivolous.

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No. 02-10819
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This appeal is without arguable merit and is hereby
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5th Cir. R. 42.2. The magistrate judge’s
dismissal of the present case as frivolous and for failure to
exhaust and this court’s dismissal of Pointer’s appeal as
frivolous count as two strikes against him for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996); 28 U.S.C. § 1915(e)(2)(B)(i). Pointer is
hereby warned that if he accumulates three “strikes” under
28 U.S.C. § 1915(g), he 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED.

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