Salazar v. Moore ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20623
Conference Calendar
RICHARD ANTHONY SALAZAR,
Plaintiff-Appellant,
versus
LT. MOORE; CAPT. ALBERTO;
BOBBY STRICKLEN; TOMMY THOMAS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-4115
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June 19, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Richard Anthony Salazar, Texas inmate #897679, proceeding
pro se and in forma pauperis (“IFP”), appeals the district
court’s dismissal as frivolous, pursuant to 28 U.S.C.
§ 1915(e)(2), of his 42 U.S.C. § 1983 complaint. We review a
dismissal as frivolous for an abuse of discretion. Black v.
Warren, 134 F.3d 732, 734 (5th Cir. 1998).
Salazar’s contentions concerning the alleged denial of
adequate medical treatment do not constitute deliberate
*
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that this opinion should not be published and is not precedent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. 01-20623
-2-
indifference. See Gibbs v. Grimmette, 254 F.3d 545, 548-49 & n.2
(5th Cir. 2001), cert. denied, 122 S. Ct. 1083 (2002). Salazar’s
assertions constitute disagreement with the treatment that he
received and are not actionable under 42 U.S.C. § 1983. See
Grimmette, 254 F.3d at 548-49.
Salazar has not complied with FED. R. APP. P. 28 and has not
briefed sufficiently his claim concerning his confinement in
lockdown. See Grant v. Cuellar, 59 F.3d 523, 524-25 (5th Cir.
1995); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Accordingly, he has abandoned the issue. Grant, 59 F.3d at 524-
25; Yohey, 985 F.2d at 224-25.
We review Salazar’s contentions, raised for the first time,
that he was confined in a filthy and insect-infested cell, he was
handcuffed and shackled during visitation, and he was denied
contact with others and access to outside world activities for
plain error only. See Douglass v. United Servs. Auto. Ass’n, 79
F.3d 1415, 1428 (5th Cir. 1996) (en banc). Resolution of these
issues would require factual findings, and factual issues which
are capable of resolution by the district court cannot rise to
the level of plain error. United States v. Vital, 68 F.3d 114,
119 (5th Cir. 1995); Gabel v. Lynaugh, 835 F.2d 124, 125 (5th
Cir. 1988).
Salazar’s appeal is without arguable merit and is DISMISSED
as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The district court’s dismissal of
Salazar’s 42 U.S.C. § 1983 complaint as frivolous and the
dismissal of the instant appeal as frivolous count as two strikes
No. 01-20623
-3-
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). We caution Salazar that once he
accumulates three strikes, he may not 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 AS FRIVOLOUS; SANCTION WARNING ISSUED.