Steele v. Valenzuela

                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 17, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-51541
                        Conference Calendar


ANTONIO STEELE,

                                      Plaintiff-Appellant,

versus

DANIEL VALENZUELA; DR. SHERI TALLEY,

                                      Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 4:03-CV-100
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     Antonio Steele, Texas prisoner # 923537, has filed a motion

for leave to proceed in forma pauperis (IFP) on appeal.       The

district court denied Steele’s IFP motion and certified that the

appeal was not taken in good faith.    By moving for IFP, Steele is

challenging the district court’s certification.     See Baugh v.

Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

     In district court, Steele contended that the defendants had

violated his First, Eighth, and Fourteenth Amendment rights by

failing to provide proper and effective medical treatment

     *
       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this opinion should not be published and is not precedent except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. 05-51541
                                -2-

consistent with his religious beliefs.    Steele’s medical records,

together with his own allegations, show that Steele received

medical treatment for his skin condition.     Steele’s disagreement

with the course of that medical treatment does not constitute

deliberate indifference.   See Varnado v. Lynaugh, 920 F.2d 320,

321 (5th Cir. 1991).   Steele has not addressed the district

court’s determination that defendants Morris, Shabaaz, Smith, and

Valenzuela could not be held liable as supervisory officials.

Therefore, these claims are deemed abandoned.     See Hughes v.

Johnson, 191 F.3d 607, 613 (5th Cir. 1999).

     Steele has not shown that the district court’s certification

was incorrect.   The instant appeal is without arguable merit and

is thus frivolous.   Accordingly, Steele’s request for IFP status

is denied, and his appeal is dismissed as frivolous.     See Howard

v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.

     The dismissal of Steele’s appeal as frivolous by this court

counts as a strike under 28 U.S.C. § 1915(g).     See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).    Steele previously

accumulated two § 1915(g) strikes.   See Steele v. Glenn, No.

04-51277 (5th Cir. May 26, 2006) (unpublished) (dismissing appeal

as frivolous after district court dismissed complaint for failure

to state a claim).   Accordingly, Steele is barred from proceeding

IFP in any civil action or appeal brought while he is

incarcerated or detained in any facility unless he is under

imminent danger of serious physical injury.     See § 1915(g).
                         No. 05-51541
                              -3-

    MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR

IMPOSED.