* 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this opinion should not be published and is not precedent except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

June 29, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41501

Summary Calendar

 

BILLY C. BLANTON,

Plaintiff-Appellant,

versus

DAVID STACKS, individually and in his official capacity; CHARLES

R. FRIZZELL, individually and in his official capacity; LARRY

SETTLES, individually and in his official capacity; UNIDENTIFIED

LATHAM, individually and in his official capacity; UNIDENTIFIED

AGUILERA, individually and in his official capacity,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:04-CV-151

--------------------

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Billy C. Blanton, Texas prisoner number 750531, filed the

instant 42 U.S.C. § 1983 suit to seek redress for the defendant

prison officials’ alleged wrongdoing. Blanton appeals the

district court’s dismissal of his suit as frivolous and for

failure to state a claim. Blanton also moves this court for the

appointment of counsel. Blanton’s motion for counsel is DENIED.
No. 04-41501

-2-

Blanton argues that the district court erred in dismissing

his claims that the defendants retaliated against him for

exercising his right of access to courts and his right to file

grievances. However, Blanton has not alleged a series of events

from which a plausible retaliation claim could be gleaned, nor

has he offered direct evidence of a retaliatory motive. See

Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). Rather, his

retaliation claims are based on his own personal beliefs and

conclusional assertions, which are insufficient to raise a viable

retaliation claim. See Jones v. Greninger, 188 F.3d 322, 324-25

(5th Cir. 1999); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th

Cir. 1997); Woods, 60 F.3d at 1166. Blanton has not demonstrated

that the district court erred in dismissing his retaliation

claims. 

Blanton also contends that the district court erred in

dismissing his claims that the defendants were deliberately

indifferent to his serious medical needs. This argument is

likewise unavailing. Blanton has not established that the

defendants purposefully ignored a serious illness or injury and

that he suffered as a result of their actions or lack thereof. 

See Wilson v. Seiter, 501 U.S. 294, 297 (1991). Rather, his

arguments in support of these claims amount to no more than

allegations of negligence or malpractice, which are insufficient

to raise a plausible claim of deliberate indifference. See

Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Blanton
No. 04-41501

-3-

has not demonstrated that the district court erred in dismissing

his deliberate-indifference claims.

Blanton’s argument that the magistrate judge was biased

against him is unavailing. Blanton’s allegations are

insufficient to show that a reasonable person who was aware of

all the circumstances surrounding this case would harbor doubts

concerning the magistrate judge’s impartiality. See United

States v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998). 

Blanton has shown no error in the judgment of the district

court. Accordingly, that judgment is AFFIRMED. The district

court’s dismissal of Blanton’s suit and this court’s affirmance

of that dismissal count as a single strike for purposes of 28

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

(5th Cir. 1996). Blanton is WARNED that if he accumulates three

strikes, he may not proceed in forma pauperis in any civil action

or appeal while he is incarcerated or detained in any facility

unless he is in imminent danger of serious physical injury. See

28 U.S.C. § 1915(g). Moreover, he should review any pending

appeals or district court actions to ensure that they are not

frivolous. 

MOTION DENIED; JUDGMENT AFFIRMED; SANCTION WARNING ISSUED.