     Case: 13-50375      Document: 00512564108         Page: 1    Date Filed: 03/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 13-50375                               FILED
                                  Summary Calendar                       March 18, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
PATRICK UZOMBA,

                                                 Plaintiff-Appellant

v.

UNIVERSITY HEALTH SYSTEMS, B.C.A.D.C., and Employees; JAMES
ANDERSON, B.C.A.D.C.; CHAN CHOON, B.C.A.D.C.; K. WHITELEY,
B.C.A.D.C.,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-177


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Patrick Uzomba, now former Bexar County detainee # 881642, seeks
leave to proceed in forma pauperis (IFP) on appeal from the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state
a claim pursuant to 28 U.S.C. § 1915A(b)(1).               Uzomba filed suit against
University Health Systems and its employees for the denial of medical


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-50375

treatment and retaliation while he was incarcerated in Bexar County Adult
Detention Center.      By moving to proceed IFP, Uzomba is challenging the
district court’s certification that the appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5).
Our inquiry into an appellant’s good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted). We may dismiss the appeal if it is frivolous. See Baugh,
117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
      A prison official can be found liable for the denial of adequate medical
care if he is aware of and disregards a substantial risk of serious harm to the
convicted prisoner, Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994), or
pretrial detainee, Hare v. City of Corinth, Miss., 74 F.3d 633, 639, 650 (5th Cir.
1996) (en banc). A delay in medical treatment is not actionable unless the
defendants were deliberately indifferent to a serious medical need and their
indifference resulted in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191,
195 (5th Cir. 1993).
      With respect to the time period during which Uzomba received delayed
medical treatment for his knee problems, including pain medication and a
walking cane, and hypoglycemia, he has not demonstrated that any delay
resulted in substantial harm.      In that regard, he asserted only general,
conclusory damages that could result from the delay in medical care, and he
made no allegations of pain. See Mendoza, 989 F.2d at 195; see also In re Great
Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010). In addition, his
disagreement with a doctor’s decision to order blood sugar monitoring instead
of placing him on a special diet in connection with his hypoglycemia does not
constitute deliberate indifference. See Gobert v. Caldwell, 463 F.3d 339, 346



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                                 No. 13-50375

(5th Cir. 2006). Regarding the time period after Uzomba’s pain medication and
walking cane were taken away and not returned to him and he was denied
knee surgery, he has not shown that the defendants’ conduct clearly evinced “a
wanton disregard for any serious medical needs.” Domino v. Texas Dep’t of
Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (internal quotation marks
and citation omitted).     The record contains only Uzomba’s conclusory
allegations that he needed a walking cane and knee surgery, and there is no
indication that he asked to be placed back on pain medication.
      Uzomba’s retaliation claims are without merit. He alleged that he was
retaliated against after he complained of the conditions in the infirmary and
after he filed a grievance against a nurse. Uzomba did not raise in the district
court a retaliation claim based on his filing a complaint against the nurse;
therefore, we decline to address that argument here. Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). Because Uzomba did not
allege the date upon which he filed grievances, he has not alleged a chronology
of events from which retaliation may be plausibly inferred.       See Jones v.
Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); Woods v.Smith, 60 F.3d 1161,
1166 (5th Cir. 1995); see also Mendoza v. Strickland, 414 F. App’x 616, 617 &
n.1, 619 (5th Cir. 2011) (applying Woods to the retaliation claim of a pretrial
detainee).
      The district court did not err in denying Uzomba’s motion to amend the
judgment because he failed to demonstrate a manifest error of fact or law and
failed to present newly discovered evidence; he reiterated the claims in his
§ 1983 complaint and raised arguments that could, and should, have been
made before the judgment issued. Simon v. United States, 891 F.2d 1154, 1159
(5th Cir. 1990). Likewise, because an adverse judicial ruling is insufficient to
warrant recusal, Uzomba has not shown that the district court erred in



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                                 No. 13-50375

denying his motion to recuse. See Liteky v. United States, 510 U.S. 540, 555
(1994). In addition, Uzomba has abandoned any claim in connection with the
denial of eyeglasses and an eye examination for his failure to brief the issue.
See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Finally, regarding
Uzomba’s claims of deliberate indifference and retaliation in connection with
his subsequent arrest and incarceration in the detention center, these claims
were not raised before the district court. Thus, we shall not address them here.
See Theriot, 185 F.3d at 491 n.26.
      Uzomba has not shown that the district court erred in certifying that his
appeal was not taken in good faith, and his IFP motion is denied. See Baugh,
117 F.3d at 202. The instant appeal is without arguable merit and is dismissed
as frivolous. See id. at 202 n.24; Howard, 707 F.2d at 219-20; 5TH CIR. R. 42.2.
      This court’s dismissal and our dismissal of this appeal count as two
strikes for purposes of the “three strikes” bar under § 1915(g). See § 1915(g);
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Uzomba is
warned that if he accumulates three strikes, he may not 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 § 1915(g).
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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