Opinion
No. 06-30838 Summary Calendar.
November 15, 2007.
Michael D. Marlin, Beaumont, TX, pro se.
Donald W. Washington, Thomas Burton Thompson, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Lafayette, LA, for Defendants-Appellees.
Appeal from the United States District Court for the Western District of Louisiana, USDC No. 2:05-CV-1947.
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
Michael D. Marlin, federal prisoner #08387-003, appeals the district court's dismissal of his Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), complaint in which he raised deliberate indifference claims pursuant to the Eighth Amendment and claims pursuant to the Americans with Disabilities Act (ADA). Marlin reasserts his arguments on appeal. He has also filed a motion to amend his brief to present "new evidence" in support of his deliberate indifference claims.
The district court dismissed Marlin's deliberate indifference claims as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). This court reviews the dismissal of a complaint pursuant to § 1915(e)(2)(B)(i) as frivolous for abuse of discretion; however, a dismissal for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) is reviewed de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005); Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). Because the district court dismissed the claims pursuant to both subsections, our review is de novo. See Geiger, 404 F.3d at 373.
At most, Marlin's argument is a disagreement with the treatment he received for his medical condition or an incorrect diagnosis on the part of the prison medical personnel, both of which are insufficient to raise an issue of material fact on a claim of deliberate indifference. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Accordingly, Marlin has failed to show that the district court erred in dismissing his deliberate indifference claims for failure to state a claim on which relief may be granted.
Marlin contends that the defendants also violated the ADA. The Bureau of Prisons is an agency of the Department of Justice, which is within the executive branch of the government. See United States v. Bourgeois, 423 F.3d 501, 509 (5th Cir. 2005). Consequently, the district court did not err in dismissing Marlin's ADA claims against Dr. Alexandre and Miss Fontenot on the basis that the ADA is not applicable to the federal government. See 42 U.S.C. § 12111(5)(B); Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003). The dismissal of Marlin's ADA claim against Scarlet Lusk, however, is affirmed because it is duplicative of a claim raised in case no. 2:05-cv-2172, which is pending before the district court on remand from this court. See Marlin v. Young, 235 Fed.Appx. 272 (5th Cir. 2007) (unpublished); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988).
Accordingly, Marlin's motion to amend his brief is GRANTED; the judgment of the district court is AFFIRMED.