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Hirsch v. Fortner, 05-40682 (2006)

Court: Court of Appeals for the Fifth Circuit Number: 05-40682
Filed: Jul. 27, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 27, 2006 Charles R. Fulbruge III Clerk No. 05-40682 Summary Calendar LARRY DWAYNE HIRSCH, Plaintiff-Appellant, versus DAVID FORTNER, Physician Assistant, Powledge Unit; KENNETH LOVE, MD, Powledge Unit; DR. UNIDENTIFIED GREZULA, Orthro-Specialist, Galveston Hospital; WARDEN UNIDENTIFIED BLEVINS, Warden, Powledge Unit, Defendants-Appellees. - Appeal from the United States Distric
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 27, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-40682
                          Summary Calendar



LARRY DWAYNE HIRSCH,

                                    Plaintiff-Appellant,

versus

DAVID FORTNER, Physician Assistant, Powledge Unit;
KENNETH LOVE, MD, Powledge Unit; DR. UNIDENTIFIED GREZULA,
Orthro-Specialist, Galveston Hospital; WARDEN UNIDENTIFIED
BLEVINS, Warden, Powledge Unit,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 6:04-CV-42
                       --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Larry Dwayne Hirsch, former Texas prisoner # 1070146,

appeals from the dismissal of his 42 U.S.C. § 1983 suit.        See 28

U.S.C. § 1915A.   Under § 1915A(b)(1), a district court is to

review a prisoner’s complaint and to dismiss the complaint if it

“is frivolous, malicious, or fails to state a claim upon which

relief may be granted.”   § 1915A(b)(1).     This court reviews



     *
       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.
                             No. 05-40682
                                  -2-

dismissals under § 1915A de novo.    See Geiger v. Jowers, 
404 F.3d 371
, 373 (5th Cir. 2005).

      Hirsch argues that Physician Assistant Fortner, Dr. Love,

Warden Blevins, Dr. Stovo, Dr. Reimer, and Dr. Murray were

deliberately indifferent to his serious medical needs.     Hirsch

has failed to demonstrate that the defendants were deliberately

indifferent to a serious medical need.      See Domino v. Texas Dep't

of Criminal Justice, 
239 F.3d 752
, 756 (5th Cir. 2001).       To the

extent that Hirsch sued Dr. Love, Warden Blevins, Dr. Stovo,

Dr. Reimer, and Dr. Murray in their supervisory capacities,

Hirsch has not shown the defendants’ personal involvement in a

constitutional deprivation.    See Thompkins v. Belt, 
828 F.2d 298
,

303-04 (5th Cir. 1987).

     Hirsch argues that the magistrate judge prevented him from

filing an amended complaint.    A Spears** hearing is “in the

nature of an amended complaint or a more definite statement.”

Adams v. Hansen, 
906 F.2d 192
, 194 (5th Cir. 1990).     At the

Spears hearing, the magistrate judge allowed Hirsch to amend his

complaint orally, which he did, adding three defendants.      Hirsch

does not suggest that he attempted to file an amended complaint

after the hearing.    Hirsch also argues that the magistrate judge

should have appointed a medical expert prior to dismissing his

claims, but Hirsch has not demonstrated that expert testimony was

warranted prior to the dismissal as frivolous under § 1915A.


     **
          Spears v. McCotter, 
766 F.2d 179
(5th Cir. 1985).
                            No. 05-40682
                                 -3-

     Hirsch does not challenge the district court’s order, stayed

pending appeal, severing and transferring his claims against Dr.

Grezula.    By failing to address the district court’s order

severing and transferring his claims against Dr. Grezula, Hirsch

has abandoned the issue for purposes of appeal.      See Yohey v.

Collins, 
985 F.2d 222
, 224-25 (5th Cir. 1993); see also Brinkmann

v. Dallas County Deputy Sheriff Abner, 
813 F.2d 744
, 748 (5th

Cir. 1987).

     Accordingly, the judgment of the magistrate judge is

AFFIRMED.    Any other requested relief is DENIED.

Source:  CourtListener

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