Harris v. Thaler , 146 F. App'x 720 ( 2005 )


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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                  August 16, 2005
    Charles R. Fulbruge III
    Clerk
    No. 04-20706
    Conference Calendar
    DUANE B. HARRIS,
    Plaintiff-Appellant,
    versus
    RICHARD C. THALER, Senior Warden; STEVEN R. RICH, Assistant
    Warden; ABBAS KHOSHDEL; LOWRY POWERS, Physician’s Assistant;
    MS. D.A. RUBY, Nurse Practitioner,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:03-CV-2039
    --------------------
    Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
    PER CURIAM:*
    Duane B. Harris, Texas prisoner no. 934689, appeals the
    dismissal of his 42 U.S.C. § 1983 action as frivolous under 28
    U.S.C. § 1915(e)(2)(B).    Harris contends that the defendants
    failed to provide him with adequate medical care.
    Harris’s complaint, his more definite statement in the
    district court, and the transcript of his hearing held pursuant
    to Spears v. McCotter, 
    766 F.2d 179
    , 180-81 (5th Cir. 1985),
    *
    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    this opinion should not be published and is not precedent except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. 04-20706
    -2-
    reveal that he has failed to allege facts to establish deliberate
    indifference to a serious medical need as is required in order to
    proceed under the Eighth Amendment and 42 U.S.C. § 1983.     See
    Varnado v. Lynaugh, 
    920 F.2d 320
    , 321 (5th Cir. 1991).     The
    judgment of the district court is AFFIRMED.
    Harris is warned that the district court’s dismissal of his
    action as frivolous counts as a strike under 28 U.S.C. § 1915(g).
    If Harris accumulates three strikes, he will not be able to
    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 Adepegba
    v. Hammons, 
    103 F.3d 383
    , 387-88 (5th Cir. 1996); 28 U.S.C.
    § 1915(g).
    AFFIRMED; SANCTION WARNING ISSUED.
    

Document Info

Docket Number: 04-20706

Citation Numbers: 146 F. App'x 720

Judges: Benavides, Clement, Per Curiam, Prado

Filed Date: 8/16/2005

Precedential Status: Non-Precedential

Modified Date: 8/2/2023