Salazar v. Moore

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 20, 2002
• Docket: 01-20623
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20623 Conference Calendar

RICHARD ANTHONY SALAZAR,

Plaintiff-Appellant,

versus

LT. MOORE; CAPT. ALBERTO; BOBBY STRICKLEN; TOMMY THOMAS,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CV-4115 -------------------- June 19, 2002

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Richard Anthony Salazar, Texas inmate #897679, proceeding

pro se and in forma pauperis (“IFP”), appeals the district

court’s dismissal as frivolous, pursuant to 28 U.S.C.

§ 1915(e)(2), of his 42 U.S.C. § 1983 complaint. We review a

dismissal as frivolous for an abuse of discretion. Black v.

Warren, 134 F.3d 732, 734 (5th Cir. 1998).

Salazar’s contentions concerning the alleged denial of

adequate medical treatment do not constitute deliberate

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20623 -2-

indifference. See Gibbs v. Grimmette, 254 F.3d 545, 548-49 & n.2

(5th Cir. 2001), cert. denied, 122 S. Ct. 1083 (2002). Salazar’s

assertions constitute disagreement with the treatment that he

received and are not actionable under 42 U.S.C. § 1983. See

Grimmette, 254 F.3d at 548-49.

Salazar has not complied with FED. R. APP. P. 28 and has not

briefed sufficiently his claim concerning his confinement in

lockdown. See Grant v. Cuellar, 59 F.3d 523, 524-25 (5th Cir.

1995); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Accordingly, he has abandoned the issue. Grant, 59 F.3d at 524-

25; Yohey, 985 F.2d at 224-25.

We review Salazar’s contentions, raised for the first time,

that he was confined in a filthy and insect-infested cell, he was

handcuffed and shackled during visitation, and he was denied

contact with others and access to outside world activities for

plain error only. See Douglass v. United Servs. Auto. Ass’n, 79

F.3d 1415, 1428 (5th Cir. 1996) (en banc). Resolution of these

issues would require factual findings, and factual issues which

are capable of resolution by the district court cannot rise to

the level of plain error. United States v. Vital, 68 F.3d 114,

119 (5th Cir. 1995); Gabel v. Lynaugh, 835 F.2d 124, 125 (5th

Cir. 1988).

Salazar’s appeal is without arguable merit and is DISMISSED

as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983). The district court’s dismissal of

Salazar’s 42 U.S.C. § 1983 complaint as frivolous and the

dismissal of the instant appeal as frivolous count as two strikes No. 01-20623 -3-

under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d

383, 387-88 (5th Cir. 1996). We caution Salazar that once he

accumulates three strikes, he may not proceed IFP 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 28 U.S.C. § 1915(g).

APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.