* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41716

Summary Calendar

MICHAEL C WHITING; ALPHA TIPPENS, JR; LARRY SHAFER; STEPHEN

F AUSTIN;MICHAEL JOEL MORALES

Plaintiffs-Appellants

v.

MICHAEL KELLY, MD; MARJORY PULVINO, RN; WILIAM SHELBY, PA;

PAUL JUNG, Doctor; OWEN MURRAY, Asso. Med. Dir. U.T.M.B; JASON

CALHOUN, Med. Dir., U.T.M.B.; ROCHELLE MCKINNEY; STEPHEN

SMOCK, Med. Admin.Ramsey II Unit; LANNETTO LINTHICUM, MD; GARY

JOHNSON, Director TDCJ; WAYNE SCOTT, Director TDCJ; A.M.

STRINGFELLOW, Chairman, TX Brd. Crim. Justice; OWEN MURRY;

UNIVERSITY OF TX MEDICAL BRANCH,Corrections Manage Health Care;

TDCJ, Health Services Division; RICK PERRY, Gov. of TX; GEORGE BUSH,

former Gov. of TX; AUGUSTINE EGBUNIKE, Dr

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:01-CV-429

Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

November 27, 2007

Charles R. Fulbruge III

Clerk
No. 05-41716

** The plaintiffs argue that the district court erred in dismissing their

claims under 28 U.S.C. § 1915(e) because they were not proceeding in forma

pauperis. Any error in relying on § 1915(e) was harmless because the district

court appropriately also relied on § 1915A. See § 1915A(b)(1).

2

Michael Whiting, Texas prisoner # 670716, and Alpha Tippins, Jr., Texas

prisoner # 830342, appealthe district court’s grant of summary judgmentfor the

defendants and dismissal as frivolous and for failure to state a claim of their

42 U.S.C. § 1983 action, alleging retaliation, mail tampering, and deliberate

indifference to serious medical needs. To the extent that Whiting and Tippins

seek to incorporate by reference arguments made in district court pleadings but

not on appeal,the arguments are abandoned. SeeYohey v. Collins, 985F.2d 222,

224-25 (5th Cir. 1993).

Whiting andTippins argue thatthe district court erred in dismissing their

retaliation and mail tampering claims as frivolous. Under 28 U.S.C. § 1915A,

the district court was required to dismiss the complaint, or any portion of it, that

was frivolous or failed to state a claim for which relief can be granted.** See

Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). We review the dismissal as

frivolous de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998).

The plaintiffs’ allegations suggested no more than a mere personal belief of

retaliatory mail tampering. See Johnson v. Rodriguez, 110 F.3d 299, 310

(5th Cir. 1997). The record does not suggest that the plaintiffs’ position as

litigants was prejudiced by the alleged mail tampering. See Walker v. Navarro

County Jail, 4 F.3d 410, 413 (5th Cir. 1993); see also Lewis v. Casey, 518 U.S.

343, 349 (1996). To the extent that the plaintiffs alleged retaliatory unit and job

transfers, the allegations did not identify “a chronology of events from which

retaliation may plausibly be inferred.” See Woods v. Smith, 60 F.3d 1161, 1166

(5th Cir. 1995) . Whiting and Tippins have not shown error in the district court’s

dismissal of these claims as frivolous. See § 1915A(b)(1).
No. 05-41716

3

Whiting and Tippins, who have tested positive for the Hepatitis C virus

(HCV), challenge the district court’s grant of summary judgment and dismissal

as frivolous oftheir deliberate-indifference-to-serious-medical-needs claims. We

review the district court’s grant of summary judgment de novo. Mississippi

River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). Summary

judgmentis proper when, viewing the evidence in the light most favorable to the

nonmovant, “‘there is no genuine issue as to any material fact and . . . the

moving party is entitled to judgment as a matter of law.’” Amburgey v. Corhart

Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991); FED. R. CIV. P. 56(c).

Whiting and Tippins argue that the defendants were deliberately

indifferent to their serious medical needs by failing to provide adequate testing

and treatment for HCV. They contend that the policy created and adopted by

the Texas Department of Criminal Justice does not comport with the accepted

standard of care for treatment of HCV. Although they clearly believe that they

should undergo additional testing and drug therapies, such disagreement does

not give rise to a constitutional claim. See Domino v. Texas Dep’t of Criminal

Justice, 239 F.3d 752, 756 (5th Cir. 2001); Varnado v. Lynaugh, 920 F.2d 320,

321 (5th Cir. 1991). The district court did not err in granting summary

judgment for the defendants and further did not err in dismissing the deliberate

indifference claims as frivolous. 

Whiting and Tippins contend that the district court failed to grant the

defendants an extension oftime to move for summary judgment and erroneously

accepted the summary judgment motion some two months late. This allegation

is contradicted by the record, which reflects that the magistrate judge granted

the defendants an extension through January 24, 2005, and the motion was filed

on that date. Whiting and Tippins also contend that the district court failed to

give them notice of summary judgment pursuant to Rand v. Rowland, 154 F.3d

952 (9th Cir. 1998). The argument is unavailing because “particularized

additional notice of the potential consequences of a summary judgment motion
No. 05-41716

4

and the right to submit opposing affidavits need not be afforded a pro se litigant.

The notice afforded by the Rules of Civil Procedure and the local rules [is] . . .

sufficient.” Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992).

They further argue that the district court failed to rule on Whiting’s motion for

an extension of time to respond to the summary judgment motion. Any error in

failing to rule expressly on the motion was harmless because after the

magistrate judge issued the report and recommendation, Whiting filed objections

and a response, and the district court conducted a de novo review. Although

Whiting and Tippins also argue that the district court erred in failing to rule on

a “plethora of motions, and erroneously leaves them unsettled to date,” the

district court’s entry of final judgment“was an implicit denial of any outstanding

motions.” Tollett v. City of Kemah, 285 F.3d 357, 369 n.* (5th Cir. 2002).

Whiting andTippins argue thatthe district court erred in refusing to allow

them to conduct discovery and in failing to rule on their FED. R. CIV. P. 56(f)

motion. After the magistrate judge recommended granting summary judgment,

Whiting moved for discovery under Rule 56(f), but he failed to set forth details

regarding what discovery was needed, stating only that the plaintiffs move for

Rule 56(f) discovery. No abuse of discretion has been shown. See Stearns

Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534-35 (5th Cir. 1999). 

Whiting and Tippins argue that the district court erred in ordering only

four of the eighteen defendants to answer the complaint. The district court was

not required to order service of process prior to dismissing the claims as

frivolous. See In re Jacobs, 213 F.3d 289, 290 (5th Cir. 2000).

Whiting and Tippins argue that the district court erred in failing to rule

on their motions for default judgment against the defendants who did not

answer the complaint. Absent proper service of process, the district court lacked

personal jurisdiction over the defendants, and any default judgment againstthe

defendants would have been void. See Rogers v. Hartford Life and Accident Ins.

Co., 167 F.3d 933, 940 (5th Cir. 1999).
No. 05-41716

5

Whiting and Tippins contend that the district court erred in failing to

grant their requests for class certification. The district court’s failure to revisit

the class certification issue prior to granting summary judgment was not an

abuse of discretion because the grant of summary judgment for the defendants

terminated the suit on the merits. See Floyd v. Bowen, 833 F.2d 529, 534-35

(5th Cir. 1987).

Whiting and Tippins have not demonstrated thatthe district court abused

its discretion in denying the appointment of counsel or expert witnesses. See

Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982); Fugitt v. Jones, 549 F.2d

1001, 1006 (5th Cir. 1977); FED. R. EVID. 706. Although Whiting and Tippins

assert that the district court erred in denying their motions for joinder of

plaintiffs and defendants,they have provided no argument on this issue, and the

issue has been abandoned. See Yohey, 985 F.2d at 224-25.

We deny the motions for class certification, appointment of counsel and

expert witnesses, and for discovery. We also deny as moot the motion for an

extension of time to file the appellants’ brief.

AFFIRMED; MOTIONS DENIED.