United States Court of Appeals

for the Fifth Circuit

No. 19-40913

Summary Calendar

Fred Hoffman, III, 

Plaintiff—Appellant,

versus

Corey Furr; Isaac Kwarteng; Physician Susanna 

Corbett; Tonya Lawson; Ben Raimer, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:18-CV-235

Before Barksdale, Graves, and Oldham, Circuit Judges.

Per Curiam:*

Proceeding pro se, Fred Hoffman, III, Texas prisoner # 1662898, 

challenges the dismissal, for failure to state a claim and as frivolous under 28 

U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), of his 42 U.S.C. § 1983 complaint.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 15, 2021

Lyle W. Cayce

Clerk

Case: 19-40913 Document: 00515708795 Page: 1 Date Filed: 01/15/2021
No. 19-40913

2

In maintaining defendants, prison employees and officials, violated his 

Eighth Amendment rights by failing to properly treat his diabetes, Hoffman 

asserts defendants adversely affected his health by: limiting him to two 

insulin injections per day; scheduling one of the injections at 3 a.m. 

(infringing on Hoffman’s sleep); switching him to cheaper medications; and 

failing to provide him with a 3 a.m. snack, a special diet, and proper clothing. 

Hoffman also contends that, in retaliation for his filing administrative 

grievances and testifying in support of other inmates’ actions, defendants:

reduced his number of daily insulin injections from three to two; treated his 

failures to attend his 3 a.m. injection as disciplinary infractions; and switched 

him to a less-effective medication. Both claims fail. (Although Hoffman 

raised an equal-protection claim in district court, it is abandoned on appeal

forfailure to brief. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).)

Adopting a magistrate judge’s report and recommendation, the 

district court dismissed Hoffman’s complaint for failure to state a claim 

and/or as frivolous under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). 

Because the magistrate judge could have referred to either § 1915(e)(2)(B)(i)

(frivolous claim) or § 1915(e)(2)(B)(ii) (failure to state a claim) in its 

recommendation, we review the dismissal de novo. See Geiger v. Jowers, 404 

F.3d 371, 373 (5th Cir. 2005) (reviewing de novo because the district court 

referred to both § 1915(e)(2)(B)(i) and § 1915A). 

When reviewing a dismissal for failure to state a claim pursuant to 

§ 1915(e)(2)(B) and § 1915A(b)(1), we accept the facts alleged in the 

complaint as true and construe them in the light most favorable to plaintiff. 

Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 419 (5th Cir. 2017). A 

complaint is frivolous if it lacks an arguable basis either in law or fact. Siglar 

v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). 

Case: 19-40913 Document: 00515708795 Page: 2 Date Filed: 01/15/2021
No. 19-40913

3

To state a claim under the Eighth Amendment based on inadequate 

medical treatment, a prisoner “must allege acts or omissions sufficiently 

harmful to evidence deliberate indifference to serious medical needs”. 

Estelle v. Gamble, 429 U.S. 97, 106 (1976). Hoffman fails to meet the 

deliberate-indifference standard because he does not show defendants were 

aware of, and then consciously disregarded, any substantial risk of serious 

harm. See Lawson v. Dallas Cnty., 286 F.3d 257, 262 (5th Cir. 2002)

(“plaintiff must show that jail officials acted or failed to act with deliberate 

indifference to [the alleged] risk”). At most, his assertions amount to 

disagreements about his medical treatment, negligence, or medical 

malpractice—none of which amount to deliberate indifference to his serious 

medical needs. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

A retaliation claim under § 1983 requires a prisoner to allege: “(1) a 

specific constitutional right, (2) . . . defendant’s intent to retaliate against the 

prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and 

(4) causation”. Jones v. Greninger, 188 F.3d 322, 324–25 (5th Cir. 1999). 

Although plaintiffs can show retaliatory intent by alleging “a chronology of 

events from which retaliation may plausibly be inferred”, Woods v. Smith, 60 

F.3d 1161, 1166 (5th Cir. 1995) (citation omitted), Hoffman fails to allege a 

sufficient chronology for any claimed retaliatory acts.

The district court’s dismissal of Hoffman’s complaint counts as a 

strike under 28 U.S.C. § 1915(g). See Alexander v. Tex. Dep’t of Crim. Just., 

951 F.3d 236, 241 (5th Cir. 2020). Hoffman is cautioned: 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 28 U.S.C. § 1915(g).

AFFIRMED; strike warning ISSUED.

Case: 19-40913 Document: 00515708795 Page: 3 Date Filed: 01/15/2021