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concluding that claim failed based on prisoner's receipt of "wrong medication, which resulted in excessive sleep, a loss of appetite, and a temporary loss of vision," because, inter alia, prisoner failed to show that "his injuries were more than de minimis" under § 1997e(e)
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No. 07-20015 Summary Calendar.
July 30, 2007.
Gary Clyde Daniels, Huntsville, TX, pro se.
Appeal from the United States District Court for the Southern District of Texas, USDC Nos. 4:06-CV-3246, 4:06-CV-3284.
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
Gary Clyde Daniels, Texas prisoner # 579867, appeals from the dismissal of his civil rights suit in which he alleged that the defendants were deliberately indifferent to his serious medical needs. The district court concluded that the suit was frivolous.
Daniels argues that defendant Beasley gave him the wrong medication, which resulted in excessive sleep, a loss of appetite, and a temporary loss of vision. Daniels has not challenged the district court's conclusion that the other named defendants were not personally involved in the submission of the wrong medication, and any such claim is abandoned. See Brinkmann v. Dallas County Deputy Sheriff Aimer, 813 F.2d 744, 748 (5th Cir. 1987). With respect to Beasley, Daniels has not established that her actions involved more than negligence. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Additionally, Daniels has not shown that his injuries were more than de minimis. See 42 U.S.C. § 1997e(e); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Daniels's appeal is without arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is dismissed. See 5TH Cir. R. 42.2. Daniels is cautioned that the dismissal of this appeal as frivolous, and the district court's dismissal of his complaint as frivolous, count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). He is cautioned that if he accumulates three strikes under § 1915(g), he will be unable to proceed in forma pauperis (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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.