United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-31056
Conference Calendar
JERRY DALLAS,
Plaintiff-Appellant,
versus
RICHARD L. STALDER; KELLY WARD; DEBBIE SCRIBER;
VENETIA MICHAEL; HEARNS, DR.; PAM LOWERY; DANNY
DAVIDSON; KEREN WHITE; HARPER, DR.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-2278
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jerry Dallas, Louisiana prisoner # 130421 (Dallas), appeals
the district court’s dismissal of his 42 U.S.C. § 1983 complaint,
alleging constitutional violations in connection with Dallas’
exposure to, and treatment for, tuberculosis. Dallas requests an
injunction against prison officials and appointment of counsel to
represent him; those motions are DENIED.
*
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that this opinion should not be published and is not precedent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. 02-31056
-2-
The district court did not abuse its discretion in
dismissing the complaint as frivolous. Dallas’ complaint did not
allege any facts that would support a finding of deliberate
indifference by prison officials in connection with his exposure
to tuberculosis. See Reeves v. Collins, 27 F.3d 174, 176 (5th
Cir. 1994). His assertion that further diagnostic tests were
necessary amounts to a disagreement with his medical treatment
that does not give rise to a 42 U.S.C. § 1983 cause of action.
See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Dallas’ claim that prison doctors failed to advise him of the
side effects of medication, for which he received medical care,
is not cognizable under 42 U.S.C. § 1983. See Estelle v. Gamble,
429 U.S. 97, 106 (1976). Dallas argues “supplemental damage
claims,” but new claims may not be asserted for the first time on
appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999).
This appeal is without arguable merit and is frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because
the appeal is frivolous, it is DISMISSED. 5TH CIR. R. 42.2.
The district court’s dismissal and this court’s dismissal
count as two strikes for purposes of 28 U.S.C. § 1915(g). See
generally Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Dallas is WARNED that if 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
No. 02-31056
-3-
he is under imminent danger of serious physical injury. See 28
U.S.C. § 1915(g).
MOTIONS DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g)
SANCTIONS WARNING ISSUED.