Tibbs v. Cockrell, 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that this opinion should not be published and is not precedent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
January 13, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41450
Summary Calendar
JAMES ISHMAEL TIBBS,
Plaintiff-Appellant,
versus
JANIE COCKRELL; ROCHELLE MCKINNEY;
WILLIAM E. GONZALEZ; TRUMAN G. BLOCKER;
LEROY SCHAFFNER,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-03-CV-671
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
James Ishmael Tibbs, Texas prisoner # 702590, has filed a
motion for leave to proceed in forma pauperis (IFP) on appeal,
following the district court’s order dismissing his civil-rights
complaint pursuant to the three-strikes bar, 28 U.S.C. § 1915(g).
Leave to appeal IFP is GRANTED. 28 U.S.C. § 1915(g).
Because Tibbs’s prison trust fund account statement shows
that his average monthly deposits and his average monthly balance
for the six-month period preceding the filing of his notice of

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No. 03-41450
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appeal were zero, no initial partial filing fee is required. The
agency having custody of Tibbs is ORDERED to forward funds from
his prison trust fund account to the clerk of the district court
on a regular basis as provided in 28 U.S.C. § 1915(b)(1) and (2),
until the full filing fee of $105 is paid. The clerk of this
court is DIRECTED to send a copy of this order to the agency
having custody of Tibbs.
However, it is clear from Tibbs’s submissions that he
complains only of a disagreement with his medical treatment. A
42 U.S.C. § 1983 claim will not lie for alleged lack of medical
treatment where the dispute is over the type or quality of
treatment rendered. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991). Consequently, Tibbs’s appeal is DISMISSED as
frivolous. 5TH CIR. R. 42.2.
IFP GRANTED; APPEAL DISMISSED AS FRIVOLOUS.

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