IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-11405

Summary Calendar

GUY DUKE TERRY, also known as Guy D. Terry, also known as Guy Terry,

Plaintiff-Appellant

v.

KIMBERLY A. BLACKERBY, Laundry Manager III; L. CHAVEZ, Nurse 

Practitioner,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:13-CV-234

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Guy Duke Terry, Texas prisoner # 1022551, filed a complaint under 

42 U.S.C. § 1983, alleging that the defendants were deliberately indifferent to 

his serious medical needs. He contended that Kimberly Blackerby, who at the 

time was a correctional officer working in the infirmary, gave a false statement

that Terry purposefully refused to take his pain medication. Terry argued

* 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 9, 2014

Lyle W. Cayce

Clerk

 

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No. 13-11405

that, based upon Blackerby’s statement, L. Chavez, without conducting a

proper investigation, discontinued Terry’s medication, thus causing him severe 

pain, insomnia, and hunger. The district court dismissed Terry’s complaint for 

failure to state a claim under 28 U.S.C. §§ 1915A and 1915(e)(2), and, therefore, 

our review is de novo using the same standard that applies to dismissals under

Federal Rule of Civil Procedure 12(b)(6). See Samford v. Dretke, 562 F.3d 674, 

678 (5th Cir. 2009). 

Terry’s allegations are insufficient to state a claim that the defendants 

were deliberately indifferent to a substantial risk of serious harm. See 

Farmer v. Brennan, 511 U.S. 825, 837 (1994). He has not set forth any facts 

that support that Blackerby gave her statement for an improper motive related 

to the denial of his medical care or that she knew of and disregarded an 

excessive risk to his health. See id. Likewise, Terry has not alleged any facts 

that show that, by relying upon Blackerby’s statement, Chavez knew and 

disregarded the risk that discontinuing his medication could cause serious 

harm to his health or safety. See id. At most, his complaint alleges claims of

mistake or negligence, which are not actionable under § 1983. See Varnado v. 

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Thus, the district court did not 

err in dismissing Terry’s complaint for failure to state a claim upon which relief 

could be granted. 

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

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

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

not 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 § 1915(g).

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No. 13-11405

Terry has filed a motion for appointment of counsel. Because he has not 

shown exceptional circumstances, his motion for the appointment of counsel is 

denied. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).

AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; 

SANCTION WARNING ISSUED.

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