IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20767
Summary Calendar
JOHN PEREZ, ET AL.,
Plaintiffs,
DANNY HANER,
Plaintiff-Appellant,
versus
HARRIS COUNTY JAIL; JOHNNY KLEVENHAGEN, Sheriff;
JOHN DOE; MEDICAL DIRECTOR; JOHN DOE #2; HARRIS
COUNTY JAIL COMMANDER; JOHN DOE, 3-12; NURSE
MASTERS; COUNTY JAIL MEDICAL STAFF,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-94-CV-1832
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July 22, 1999
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Danny Haner, Texas prisoner # 704002, has appealed the
dismissal of his 42 U.S.C. § 1983 complaint for want of
prosecution. Haner has failed to challenge on appeal the
dismissal of his complaint for want of prosecution. Therefore,
this claim is deemed abandoned. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
*
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that this opinion should not be published and is not precedent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. 97-20767
-2-
However, the court has reviewed the record and has
determined that the district court did not abuse its discretion
in dismissing the complaint for want of prosecution because Haner
failed to pursue the litigation in a timely manner. See Fed. R.
Civ. P. 41(b).
Haner makes several new arguments for the first time on
appeal. He argues that, while incarcerated in the Harris County
Jail, he slipped in the shower as the result of the unsanitary
and overcrowded conditions in the cell block. Haner also argues
that he was assigned a top bunk bed after surgery and fell and
fractured his finger. While recognizing that he received
treatment for the injury, he argues that he was not sent to the
“plastic” clinic for two weeks.
Haner also argues for the first time that his diet tray was
discontinued after he filed a grievance about items missing from
his tray. He argues that deputies took his medicine following a
shakedown, including medicine that he had purchased at the
commissary.
Haner also argues that he was harassed by Don Nichols
because he complained about his medical treatment and that he was
sent back to general population by Dr. Guice without having been
seen by the doctor. Haner also argues for the first time on
appeal that his rights are being violated by the medical
personnel at the Bill Clements Infirmary, including Dr.
Ratnarajah, who he claims is a defendant in this case.
These arguments present issues which were not resolved below
and, thus, may only be reviewed for plain error. See United
No. 97-20767
-3-
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc). Issues raised for the first time on appeal that involve
factual determinations that could have been resolved in the
district court generally do not rise to the level of plain error.
Robertson v. Plano City of Texas, 70 F.3d 21, 23 (5th Cir. 1995).
These new issues do not rise to the level of plain error.
This appeal is without arguable merit and, thus, frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The
appeal should be dismissed. See 5th Cir. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike
for purposes of 28 U.S.C. § 1915(g). We caution Haner that once
he accumulates three strikes, he may not 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 28 U.S.C. §
1915(g).
Haner’s motion for a temporary restraining order is DENIED.
APPEAL DISMISSED; SANCTION WARNING ISSUED.