United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-40808
Conference Calendar
DAVID GUERRERO-AGUILAR,
Plaintiff-Appellant,
versus
MANUEL RUANO; LYNN WEISS; FCI THREE RIVERS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CV-122
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
David Guerrero-Aguilar (Guerrero), federal prisoner # 94621-
079, appeals the district court’s dismissal of his Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), action for failure to state a claim. Guerrero sued FCI
Three Rivers; Manuel Ruano, the Health Services Administrator;
and Lynn Weiss, a Health Services assistant, asserting that he
was being denied eye surgery recommended by an ophthalmologist.
The district court determined that Guerrero had not alleged
personal involvement or supervisory liability on the part of any
*
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this opinion should not be published and is not precedent except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. 04-40808
-2-
of the defendants. The district court also held that Guerrero
had failed to state an Eighth Amendment claim based on deliberate
indifference.
Guerrero contends that the district court erred in
dismissing his complaint because the eye drops, acetaminophen,
and eye glasses he received as treatment are insufficient to
resolve the severe pain he is suffering. He asserts, for the
first time on appeal, that Ruano has ignored his requests for eye
surgery.
We review the district court’s dismissal of Guerrero’s
complaint for failure to state a claim de novo. See Bazrowx v.
Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). Bivens provides a
cause of action against federal agents only in their individual
capacities and requires a showing of personal involvement.
Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d
282, 286 (5th Cir. 1999); Thompson v. Steele, 709 F.2d 381, 382
(5th Cir. 1983); see Izen v. Catalina, 382 F.3d 566, 570 n.3 (5th
Cir. 2004) (recognizing Bivens and 42 U.S.C. § 1983 actions are
analogous). Despite the district court’s request for Guerrero to
provide a more definite statement of “how each defendant was
personally involved in the alleged denial of medical care,”
Guerrero made no such allegations before the district court. We
decline to consider Guerrero’s assertion that Ruano ignored
Guerrero’s requests for eye surgery because it is raised for the
first time on appeal. See Leverette v. Louisville Ladder Co.,
No. 04-40808
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183 F.3d 339, 342 (5th Cir. 1999). Accordingly, the district
court did not err in dismissing Guerrero’s complaint for failure
to state a claim.
Guerrero’s appeal is without arguable merit and is dismissed
as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2. The district court’s dismissal of the
complaint and the dismissal of this appeal as frivolous both
count as “strikes” under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Guerrero is
cautioned that if he 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
28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.