Johnson v. Talley

* 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this opinion should not be published and is not precedent except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
June 13, 2007
Charles R. Fulbruge III
Clerk
*CORRECTED*
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50947
Summary Calendar
DONALD M. JOHNSON,
Plaintiff-Appellant,
versus
SHERI TALLEY, Doctor,
Defendant-Appellee.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:03-CV-119
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Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:*
Donald M. Johnson, Texas prisoner # 638554, has filed an
application for leave to proceed in forma pauperis (IFP) on
appeal following the district court’s dismissal of his 42 U.S.C.
§ 1983 civil rights complaint against Texas Department of
Criminal Justice (TDCJ) physician Sheri Talley. Johnson alleged
that Talley acted with deliberate indifference to his medical
needs while he was at the Lynaugh Unit because Talley provided

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him with the wrong type of knee brace to treat his
osteoarthritis; took the knee brace away from him; allowed
security to place him on the second floor in spite of orders from
specialists that he be placed on the first floor; and treated his
shoulder pain improperly. Johnson also contended that Talley’s
actions toward him were motivated by her bias against African
Americans and Muslims. Johnson sought as relief monetary damages
and a temporary restraining order.
The district court denied Johnson leave to proceed IFP on
appeal, certifying that the appeal was not taken in good faith.
By moving for IFP, Johnson is challenging the district court’s
certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); FED. R. APP. P. 24(a).
Johnson argues that Talley acted with deliberate
indifference to his medical needs when she failed to provide him
with a knee brace, cane, or walking stick for most of his stay at
the Lynaugh Unit. This argument alleges, at most, a difference
in opinion or a malpractice claim concerning Johnson’s medical
treatment and thus does not establish an Eighth Amendment
violation. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991).
Johnson also contends that Talley was deliberately
indifferent to his medical needs when she placed him on the
second floor and in the hoe squad, both of which violated his
medical restrictions. As the district court determined, Johnson

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has not shown that he was injured by his placement on the second
floor or in the hoe squad, and he concedes that he is no longer
housed in the Lynaugh Unit. Accordingly, he may not recover on
this claim under § 1983. See Farrar v. Hobby, 506 U.S. 103, 112
(1992). Although Johnson does argue in his IFP motion that
climbing stairs and working in the hoe squad led to a torn
meniscus, we will not consider this argument because it is being
raised for the first time on appeal. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Furthermore, the
issue is fact-based, and Johnson has not shown plain error. See
Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th
Cir. 1996)(en banc).
Johnson also argues for the first time in his IFP motion
that (1) Talley placed him on the second floor in retaliation for
his filing complaints and grievances against her; and (2) Talley
acted with deliberate indifference to his medical needs when she
refused to authorize a surgery on his knee. Because these
arguments are being raised for the first time on appeal, we do
not consider them. See Leverette, 183 F.3d at 342.
Johnson’s motion fails to show error in the district court’s
certification decision and fails to show that Johnson will raise
a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). Accordingly, Johnson’s motion to
proceed IFP on appeal is denied, and his appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

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Our dismissal of the instant appeal and the district court’s
dismissal of Johnson’s complaint for failure to state a claim
each count as strikes for purposes of 28 U.S.C. § 1915(g).
See Johnson v. Talley, No. P-03-CV-119 (W.D. Tex. Feb. 22, 2005);
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). This
court’s dismissal of a prior § 1983 appeal by Johnson as
frivolous counts as a third strike. See Johnson v. Smith, No.
05-50801 (5th Cir. April 2, 2007). Because Johnson has
accumulated at least three strikes under § 1915(g), he is barred
from proceeding IFP in any civil action or appeal while he is
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. § 1915(g).
MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.

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