Sabah v. University of Texas Medical Branch ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 5, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-20294
Summary Calendar
IBRAHIM SABAH,
Plaintiff-Appellant,
versus
UNIVERSITY OF TEXAS MEDICAL BRANCH,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-3415
--------------------
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ibrahim Sabah, Texas prisoner # 792971, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint
against the University of Texas Medical Branch (UTMB). Sabah
contends that the district court erred when it dismissed his
complaint as frivolous because he has a colorable Eighth
Amendment claim. This court reviews a dismissal as frivolous for
an abuse of discretion. Martin v. Scott, 156 F.3d 578, 580 (5th
*
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this opinion should not be published and is not precedent except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. 06-20294
-2-
Cir. 1998).
Sabah contends that he suffered from a serious medical
condition, that the prescribed medical care was delayed, and that
the delay resulted in substantial harm to his eye. However,
aside from conclusional allegations, he does not contend that
prison officials were deliberately indifferent to his serious
medical needs. Specifically, Sabah does not allege that anyone
at the Estelle Unit pharmacy deliberately withheld the prescribed
eye drops. Further, he does not allege that anyone at the
pharmacy was aware of and consciously disregarded the substantial
risk of serious harm to his eye by failing to provide the eye
drops in a timely manner. Sabah’s allegations amount at most to
negligence. Therefore, Sabah has not shown that the district
court abused its discretion when it dismissed his complaint as
frivolous. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991).
Sabah’s appeal lacks arguable merit and is dismissed as
frivolous. See 5TH CIR. R. 42.2. The district court’s dismissal
of Sabah’s complaint and this court’s dismissal of the instant
appeal count as two strikes for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Sabah is cautioned that if he accumulates three strikes under
§ 1915(g), he will not be able to proceed in forma pauperis in
any civil action or appeal filed while he is incarcerated or
No. 06-20294
-3-
detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.