     Case: 16-20503   Document: 00514350551   Page: 1   Date Filed: 02/16/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                              No. 16-20503
                            Summary Calendar
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                February 16, 2018
VAUGHN MONROE,
                                                                  Lyle W. Cayce
                                                                       Clerk
                                         Plaintiff–Appellant,

v.

JOHN DOE, I - Director - University of Texas Medical Branch, Galveston,
Texas; BRYAN COLLIER, Executive Director - Texas Department of Criminal
Justice, Huntsville, Texas; DR. L. LINTHICUM, Medical Director - Texas
Department of Criminal Justice, Huntsville, Texas; JOSEPH CURRY,
Physicians Assistant - University of Texas Medical Branch, Huntsville, Texas;
JOE MORGAN, Practice Manager - University of Texas Medical Branch,
Huntsville, Texas; DR. ROHIT VENKATESAN, M.D. - University of Texas
Medical Branch, Galveston, Texas; DR. ROGER SOLOWAY, M.D. - University
of Texas Medical Branch, Galveston, Texas; STEVE MILLER, Warden - Byrd
Unit, Galveston, Texas; DR. B. WILLIAMS, Unit Physician - University of
Texas Medical Branch, Huntsville, Texas; M. ROESLER, Warden - Ellis Unit,
Physician - Texas Department of Criminal Justice, Huntsville, Texas; MR.
ROARK, Physicians Assistant - University of Texas Medical Branch,
Livingston, Texas; DR. RIPSON, Unit Physician - University of Texas Medical
Branch, Livingston, Texas; DR. BRISCOE, Unit Physician - University of
Texas Medical Branch, Livingston, Texas; TODD HARRIS, Warden - Polunsky
Unit, Texas Department of Criminal Justice, Livingston, Texas,

                                         Defendants–Appellees.


                Appeals from the United States District Court
                     for the Southern District of Texas
                           USDC No. 4:16-CV-541
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                                      No. 16-20503

Before JOLLY, JONES, and OWEN, Circuit Judges.
PER CURIAM: *
       Vaughn Monroe, then Texas prisoner no. 1967416, filed a 42 U.S.C.
§ 1983 civil rights complaint alleging that he was subjected to cruel and
unusual punishment in violation of the Eighth Amendment while he was
incarcerated in various units of the Texas Department of Criminal Justice. He
alleged that the 14 defendants associated with the University of Texas Medical
Branch (UTMB defendants) acted with deliberate indifference to his serious
medical needs by failing to provide him with adequate medical treatment for
his abdominal pain, hand pain, and other medical conditions. He alleged that
the five defendants associated with the Texas Department of Criminal Justice
(TDCJ defendants) failed to protect him from the harm caused by the UTMB
defendants. Monroe now appeals from the district court’s order dismissing his
complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on
which relief can be granted. Monroe’s motion for leave to file a supplemental
appellate brief is denied.
       We review a district court’s dismissal under § 1915(e)(2)(B)(ii) de novo,
applying the standard used for reviewing a dismissal under Federal Rule of
Civil Procedure 12(b)(6). Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013).
In conducting that review, we accept the facts alleged in the complaint as true
and view them in the light most favorable to the plaintiff. Green v. Atkinson,
623 F.3d 278, 280 (5th Cir. 2010).
       On appeal, Monroe reiterates his complaints regarding the medical care
provided by the UTMB defendants and argues that the district court erred in



       * 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. 16-20503

determining that those defendants were not deliberately indifferent to his
serious medical needs. However, Monroe’s arguments are unavailing. Even if
the assertions in his complaint are true, his contentions effectively amount to
a disagreement with the treatment and care provided and do not amount to a
constitutional violation. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991); see Gobert v. Caldwell, 463 F.3d 339, 346, 349 n.32 (5th Cir. 2006);
Mendoza v. Lynaugh, 989 F.2d 191, 194-95 (5th Cir. 1993).
       Monroe erroneously asserts that the district court did not rule on his
failure to protect claims against the TDCJ defendants. He asserts in the
alternative that the district court erred in denying those claims. However, that
argument also is unavailing. Monroe’s allegations that the TDCJ defendants
denied or ignored his complaints that he was receiving inadequate medical care
from the UTMB defendants were insufficient to demonstrate that any of those
defendants were aware of facts from which the inference could be drawn that
a substantial risk of serious harm existed or that any of the TDCJ defendants
actually drew such an inference. See Farmer v. Brennan, 511 U.S. 825, 847
(1994).
       Next, Monroe argues that the district court abused its discretion by
denying his claims without conducting a Spears 1 hearing, giving him an
opportunity to amend his complaint to remedy his claims, or to conduct
discovery. However, he has not shown an abuse of discretion. Although the
district court dismissed Monroe’s complaint without holding a hearing, it gave
Monroe an opportunity to develop his factual allegations by ordering him to
file a more definite statement and plead his best case.                 Monroe has not
identified any facts he would have added or how he could have overcome the



       1Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985), overruled on other grounds
by Neitzke v. Williams, 490 U.S. 319, 324 (1989).


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                                    No. 16-20503

deficiencies found by the district court if he had been granted a hearing or an
opportunity to amend. See Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir.
1986); Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986). Nor has Monroe
shown how discovery of records relating to the ongoing medical care he has
received, which he thoroughly discussed in his complaint, would have helped
him state a claim of either deliberate indifference to his medical needs or
failure to protect.
      Accordingly, the district court’s judgment is affirmed. With his appeal,
Monroe filed motions to remand for a Spears hearing and for the appointment
of counsel to represent him at that hearing. Those motions are denied.
      The district court’s dismissal of Monroe’s complaint for failure to state a
claim counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996).         Monroe is cautioned that if he
accumulates three strikes, he will not be able to proceed in forma pauperis 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 28
U.S.C. § 1915(g).
                                *        *         *
      The judgment of the district court is AFFIRMED; the motions to file a
supplemental brief, to remand for a Spears hearing, and to appoint counsel are
DENIED; a sanction warning is ISSUED.




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