United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-20097
Summary Calendar
JOHN W. MELTON,
Plaintiff-Appellant
v.
BRAD LIVINGSTON, Director; LELAND HEUSZEL, Sr. Warden-Byrd Unit;
WILLIAM SAMNEH, Medical Director; LLOYD ASCHBURGER, P.A.,
Defendants-Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-1278
--------------------
Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
John W. Melton, Texas prisoner # 1168128, appeals the
dismissal with prejudice of his 42 U.S.C. § 1983 complaint
pursuant to 28 U.S.C. § 1915A(b)(1). Although the district court
dismissed Melton’s complaint because it found his complaint
lacked an arguable basis in law, we affirm the district court’s
judgment because Melton’s complaint lacked an arguable basis in
*
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this opinion should not be published and is not precedent except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. 06-20097
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fact and because it failed to state a claim upon which relief
could be granted. See § 1915A(b)(1); Neitzke v. Williams, 490
U.S. 319, 327 (1989); see Sojourner T v. Edwards, 974 F.2d 27,
30 (5th Cir. 1992) (we may affirm on any grounds supported by the
record).
On appeal, Melton argues that the “defendant(s)” knew that
making him work in the kitchen and the laundry posed a risk to
his health and that it could result in his death; that the
defendants’ actions, and more specifically Major Joe Blanton’s
actions, in removing him from the maintenance department and
placing him in the kitchen and the laundry were retaliatory; that
Dr. Hung Dao knew his work assignment was posing a danger to his
health; and that the defendants’ actions caused him to cease
getting interferon treatment for Hepatitis C. He states that a
nurse has told him that restarting the interferon treatment would
most likely be fatal.
The district court’s dismissal of Melton’s claims of
deliberate indifference due to his job reassignments was proper
because Melton failed to show that Blanton or any other named
defendant was deliberately indifferent to a substantial risk of
harm to Melton’s health when Melton was assigned to the kitchen
and the laundry. See Farmer v. Brennan, 511 U.S. 825, 828, 837,
847 (1994); Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989).
Although Melton complains of his second reassignment to the
kitchen in his appellate brief, we do not consider these factual
No. 06-20097
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allegations as he did not make these factual allegations in the
district court. See Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999). To the extent Melton’s complaint can
be liberally construed as complaining that Dr. Dao was
deliberately indifferent to his medical needs, his claim is
without merit. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Melton’s claims of retaliation by Blanton fail because the
attachments to his § 1983 complaint indicate that Melton
repeatedly complained of the prison’s sack lunches, that officers
and prison officials checked into his complaints and found them
to be without merit, and that Blanton reassigned Melton to the
kitchen so that Melton could understood how the sack lunches were
made. Thus, even if there arguably was a chronology of events
which supports Blanton’s assertion of retaliation and even if
Blanton had a retaliatory motive, there was a nonretaliatory
purpose for reassigning Melton to the kitchen - - having Melton
understand how the sack lunches were made. See Jones v.
Greninger, 188 F.3d 322, 325 (5th Cir. 1999); McDonald v.
Steward, 132 F.3d 225, 231 (5th Cir. 1998). Melton cannot show
that but for Blanton’s alleged retaliatory motive, his
reassignment to the kitchen would not have occurred. See
McDonald, 132 F.3d at 231.
Melton concedes that the actions of physician’s assistant
Lloyd Ashburger, standing alone, did not violate his
constitutional rights. Moreover, his remaining claims of the
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denial of medical care, of the denial of access to courts, and of
retaliation have been abandoned. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).
Melton’s appeal is frivolous and is dismissed. See Howard,
707 F.2d at 220; 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). In
Melton v. Lock, No. 05-20770, this court advised Melton that he
has two strikes. Accordingly, Melton now has three strikes under
§ 1915(g). Melton is therefore barred from proceeding in forma
pauperis in any civil action or appeal brought in a United States
court unless he is under imminent danger of serious physical
injury. See § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.