IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30093

Summary Calendar

DEREK D. HARRIS,

Plaintiff - Appellant

v.

STEPHEN KUPLESKY; DOCTOR WHEAT; TIMOTHY KEITH; 

CORRECTIONS CORPORATION OF AMERICA; NURSE BROADWAY,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:13-CV-598

Before DAVIS, BARKSDALE, and OWEN, Circuit Judges.

PER CURIAM:*

Derek D. Harris, Louisiana prisoner # 414072, pro se and in forma 

pauperis, challenges the dismissal of his 42 U.S.C. § 1983 complaint for failure 

to state a claim and frivolousness. In his complaint, Harris claimed Dr. 

Kuplesky, Dr. Wheat, and Nurse Broadway, employees at the Winn 

Correctional Center, were deliberately indifferent to his serious medical needs 

* 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

FILED

September 15, 2014

Lyle W. Cayce

Clerk

 

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No. 14-30093

when they prescribed him allegedly dangerous medication and failed to 

respond to his concerns about the medication other than to discontinue it.

Dismissal for failure to state a claim under § 1915(e)(2) is reviewed de 

novo, the standard used for dismissals pursuant to Federal Rule of Civil 

Procedure 12(b)(6). E.g., Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998). 

To survive dismissal, the complaint must “‘state a claim to relief that is 

plausible on its face’”. In re Katrina Canal Breaches Litigation, 495 F.3d 191, 

205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). Because we conclude that Harris did not meet this standard, we do 

not consider separately whether his complaint was frivolous.

On appeal, Harris provides only conclusory assertions of error and 

deliberate indifference. Harris fails to articulate facts showing the medical 

defendants knew of a substantial risk to Harris’ health and disregarded it 

deliberately. See Rogers v. Boatright, 709 F.3d 403, 410 (5th Cir. 2013).

Harris does not challenge the dismissal of his complaint as it pertains to 

his claims against Keith, Heyse, or Corrections Corporation of America. 

Accordingly, he has abandoned them on appeal. E.g., Yohey v. Collins, 985 

F.2d 222, 224–25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff 

Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Finally, Harris contends the court committed error in denying his motion 

for appointment of counsel. Because he fails to claim exceptional circumstances 

justify such appointment, he fails to show the district court abused its 

discretion. See Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982).

The district court’s dismissal of Harris’ complaint counts as a strike 

under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387–88 

(5th Cir. 1996). Harris is warned that, if he accumulates three strikes, he will 

no longer be allowed to proceed in forma pauperis in any civil action or appeal 

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filed while he is incarcerated or detained in any facility, unless he is under 

imminent danger of serious physical injury. See § 1915(g). 

AFFIRMED; SANCTION WARNING ISSUED.

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