United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 13, 2006
Charles R. Fulbruge III
Clerk
No. 04-10542
Summary Calendar
CLAUDIO ANTONIO DAVALOS,
Plaintiff-Appellant,
versus
FNU WHEELER, FNU WHIDDEN, Captain; FNU SMITH, Sergeant;
N. BRUNSON, R.N.; G. ANDERSON, R.N.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:02-CV-219
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Claudio Antonio Davalos, Texas prisoner # 1082702,
proceeding pro se and in forma pauperis (IFP), appeals the
magistrate judge’s dismissal of his 42 U.S.C. § 1983 civil rights
action against Texas Department of Criminal Justice –
Institutional Division (TDCJ-ID) officers Wheeler, Whidden, and
Smith and Nurses Brunson and Anderson as frivolous.
Davalos’s appellate brief is disjointed and confusing.
However, liberally construed, it contends that the officers and
*
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this opinion should not be published and is not precedent except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. 04-10542
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nurses acted with deliberate indifference to his medical needs
when they gave him a work assignment that was contrary to prior
work classifications stating that he should not work in direct
sunlight. Liberally construed, Davalos’s brief also contends
that the officers and nurses acted with deliberate indifference
to his medical needs when they did not allow him to wear his
clip-on sunglasses indoors. Because Davalos conceded in his
complaint and at the Spears hearing that Captain Whidden, Warden
Wheeler, and Sergeant Smith acted in accordance with the
recommendations of Nurse Brunson and Nurse Anderson when they
refused to allow him to wear his sunglasses indoors and when they
ordered him to work outdoors with sunglasses, there is no
indication that the officers knew that Davalos faced any risk of
serious harm. See Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Furthermore, because Nurse Brunson’s and Nurse Anderson’s
decisions did not conflict with Davalos’s eye doctor’s
evaluation, their medical decisions would amount to negligence at
the most and are insufficient to establish an unconstitutional
denial of medical care. See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991).
To the extent that Davalos is claiming that prison officers
and medial staff conspired or retaliated against him for filing
grievances, his conclusory assertions are not sufficient to
establish such a claim. See Woods v. Smith, 60 F.3d 1161, 1166
No. 04-10542
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(5th Cir. 1995); Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th
Cir. 1987).
Davalos’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, we dismiss his appeal as frivolous. 5TH CIR.
R. 42.2. The dismissal of this appeal as frivolous counts as a
strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 385-87 (5th Cir. 1996). Davalos is warned that if he
accumulates three strikes under 28 U.S.C. § 1915(g), he will not
be able to 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; SANCTION WARNING ISSUED.