IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41434
Conference Calendar
ESTEBAN RAMIREZ HERNANDEZ,
Plaintiff-Appellant,
versus
CAROL D. GUNTER, Patient Care Coordinator; DAVID
M. FONTER , Physician Assistant; K.C. LOVE, Doctor;
H. CLAYTON, Doctor; PAT CALCATE, Patient Liaison,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CV-310
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June 18, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Esteban Ramirez Hernandez (Ramirez), Texas inmate #763315,
appeals from the magistrate judge’s dismissal as frivolous of his
civil rights complaint. Ramirez proceeded to final judgment
before the magistrate judge. See 28 U.S.C. § 636(c). We review
for an abuse of discretion. See Berry v. Brady, 192 F.3d 504,
507 (5th Cir. 1999).
For the first time on appeal, Ramirez argues that the
defendants were deliberately indifferent to his medical needs by
*
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that this opinion should not be published and is not precedent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. 00-41434
-2-
leaving him at his assigned job in a metal fabrication
environment. He asserts that the noise in the work environment
was harmful to his ear condition and hindered any recovery. We
do not consider this new issue raised for the first time on
appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999).
Although Ramirez contends that the defendants were
deliberately indifferent to his medical needs, he admits that he
received medical treatment. As he asserted before the magistrate
judge, Ramirez bases his contention of deliberate indifference on
the lack of immediate medical care for his ear problem and on the
lack of success by the doctors in treating his chronic ear
condition. Ramirez’s allegations neither rise to the level of
constitutional tort nor constitute deliberate indifference. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994); Harris v. Hegmann,
198 F.3d 153, 159 (5th Cir. 1999).
The magistrate judge did not abuse his discretion in
dismissing Ramirez’s complaint as frivolous. See Berry, 192 F.3d
at 507. This appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). The appeal is DISMISSED as frivolous. See 5TH CIR.
R. 42.2.
This court’s dismissal counts as Ramirez’s second strike
pursuant to 28 U.S.C. § 1915(g); the first strike arising from
the dismissal in the district court. See Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996). If Ramirez accumulates three
strikes, he may not proceed in forma pauperis in any civil action
No. 00-41434
-3-
or appeal filed while he is incarcerated or detained in any
facility unless he is in imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g). Ramirez is cautioned to review
any pending appeals to ensure that they do not raise frivolous
issues.
APPEAL DISMISSED; SANCTION WARNING ISSUED.