Summary Calendar LLOYD HENRY PHILLIPS v. Global Expertise in Outsourcing

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30954
Summary Calendar
LLOYD HENRY PHILLIPS
Plaintiff-Appellant
v.
GLOBAL EXPERTISE IN OUTSOURCING; CHRIS WHARTON; LOUISIANA
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:05-CV-926
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Lloyd Henry Phillips, Louisiana prisoner # 412799, appeals the summary
judgment dismissal of his 42 U.S.C. § 1983 complaint alleging deliberate
indifference to his serious medical condition. He contends that the district court
abused its discretion in denying his motions for appointment of counsel,
production of medical records, leave to file an amended complaint, and recusal
of the magistrate judge. He additionally argues that the 28 U.S.C. § 1915(g) bar
United States Court of Appeals
Fifth Circuit
F I L E D
July 30, 2008
Charles R. Fulbruge III
Clerk

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was erroneously applied to his complaint, he was entitled to a default judgment,
and the district court erred in denying his motion for summary judgment. We
affirm.
The district court’s summary judgment ruling turned on the issue of
deliberate indifference. The issue whether Phillips sustained a cognizable injury
was not relevant to the ruling. As such, he has not demonstrated an abuse of
discretion on the part of the district court in denying his motions for
appointment of counsel, see Castro Romero v. Becken, 256 F.3d 349, 353-54 (5th
Cir. 2001), and production of medical records. See Theriot v. Parish of Jefferson,
185 F.3d 477, 490 (5th Cir. 1999). Insofar as Phillips challenges the district
court’s denying him leave to file an amended complaint, the court so ruled
because the new claims he sought to add arose after he filed the present suit
were factually distinct from those originally presented and did not appear to be
exhausted. Phillips’s failure to assign error to the ruling in that regard renders
its appeal waived. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
Phillips’s motion to recuse the magistrate judge was based solely on
conclusional allegations of prejudice stemming from adverse rulings. Adverse
judicial rulings alone, however, do not support an allegation of bias under 28
U.S.C. §§ 455 or 144. Liteky v. United States, 510 U.S. 540, 555 (1994). Phillips
has therefore shown no abuse of discretion on the part of the district court in
denying his recusal motion. See Matassarin v. Lynch, 174 F.3d 549, 571 (5th
Cir. 1999).
Prior to the filing of the present suit, Phillips had accumulated three
strikes. See Phillips v. Lott, No. 98-CV-1292 (W.D. La. Mar. 29, 1999); Phillips
v. Guidry, No. 98-CV-1293 (W.D. La. Feb. 4, 1999); Phillips v. Breaux, No. 98-
CV-1294 (W.D. La. Feb. 4, 1999). As such, he was correctly barred from
proceeding in forma pauperis in the instant action absent proof that he was

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under imminent danger of serious physical injury. See § 1915(g); Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Phillips did not appeal the magistrate judge’s ruling denying his motion
for default judgment to the district court. Consequently, we are without
jurisdiction to consider his appellate argument. See Colburn v. Bunge Towing,
Inc., 883 F.2d 372, 379 (5th Cir. 1989). Finally, the district court did not err in
denying Phillips’s motion for summary judgment. Phillips’s summary judgment
evidence did not show the absence of a genuine issue of fact concerning the
deliberate indifference element of his claim, and he was not entitled to summary
judgment as a matter of law. See FED. R. CIV. P. 56(c).
AFFIRMED.

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