     Case: 09-11172     Document: 00511146499          Page: 1    Date Filed: 06/18/2010




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

                                                 FILED
                                                                            June 18, 2010
                                     No. 09-11172
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

PERCY FOREMAN,

                                                   Plaintiff-Appellant

v.

DAVID POTTER; ANDREW GREEN,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 7:07-CV-151


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Percy Foreman, Texas prisoner # 926545, moves for leave to proceed in
forma pauperis (IFP) following the district court’s certification that his appeal
is not taken in good faith. Foreman also moves for appointment of counsel; that
motion is denied.
        The district court granted summary judgment for defendants Dr. David
Potter and Sgt. Andrew Green in Foreman’s 42 U.S.C. § 1983 civil rights action.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-11172

The district court also dismissed Foreman’s claims against Potter and Green as
frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
      Foreman contends that the district court erred by denying him an
extension of time to file his second summary judgment motion and denying his
motion for discovery of prison I-60 request forms. He argues that the district
court erred by granting summary judgment on his claim against Potter. He lists
the legal standards relevant to his claim against Sgt. Green, but alleges no facts
relevant to that claim; he has failed to brief that claim for our review. See
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
      Foreman’s claim against Dr. Potter is based on a delay between the date
on which his fractured ankle was discovered and the date on which he had
surgery performed to repair that ankle.      The summary judgment evidence
indicates that Foreman was treated continuously from the time he was injured
on March 10, 2007, until January 2008.        Moreover, the evidence does not
indicate any causal connection between time lapse from the injury and the
surgery and the infection that Foreman later contracted. Additionally, Foreman
was seen by medical staff personnel and treated for his ankle injury in the prison
infirmary during the period between his injury and his surgery. The evidence
does not demonstrate that Dr. Potter or the medical staff were deliberately
indifferent to Foreman’s fractured ankle or that the delay between injury and
surgery caused any later complications. See Farmer v. Brennan, 511 U.S. 825,
837 (1994); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).            The
defendants demonstrated that there was no genuine issue of material fact as to
Dr. Potter’s treatment of Foreman’s injury, and the district court did not err by
granting summary judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc).
      A district court must sua sponte dismiss a prisoner’s IFP § 1983 complaint
if the action is malicious or frivolous, fails to state a claim, or seeks monetary
relief from a defendant who is immune.        § 1915(e)(2)(B).   A claim may be

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                                 No. 09-11172

dismissed as frivolous if it does not have an arguable basis in fact or law. Geiger
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). This court reviews a district court’s
dismissal as frivolous for abuse of discretion. Id.
      The district court relied on Foreman’s medical records and other evidence
outside of the pleadings to determine that his claims were frivolous. Because the
district court relied on material outside of the pleadings, the dismissal as
frivolous operates as a summary judgment. See Washington v. Allstate Ins. Co.,
901 F.2d 1281, 1283-84 (5th Cir. 1990). Moreover, the district court did not
provide any explanation for the dismissal of Foreman’s claims as frivolous.
Rather, it granted summary judgment, then stated that “the complaint is hereby
dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous.”
The district court erred by dismissing Foreman’s medical care claim as frivolous.
See Geiger, 404 F.3d at 373.      Because the district court committed error,
Foreman’s IFP motion is granted, and the dismissal of Foreman’s claim against
Dr. Potter as frivolous is vacated.
      Foreman does not brief the grant of summary judgment of dismissal as
frivolous as to his claim against Sgt. Green.      Moreover, Foreman does not
challenge the district court’s previous dismissal in this same action of his claim
against Texas Tech University as frivolous. The dismissal of those claims as
frivolous counts as one strike pursuant to 28 U.S.C. § 1915(g). Foreman is
warned that, if he accumulates three strikes under § 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 § 1915(g).
      IFP GRANTED; GRANT OF SUMMARY JUDGMENT AFFIRMED;
DISMISSAL AS FRIVOLOUS VACATED IN PART AND AFFIRMED IN PART;
APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING IMPOSED.




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