Vallejo v. Murry, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41230
Conference Calendar
PETE VALLEJO,
Plaintiff-Appellant,
versus
OWEN J. MURRY, Doctor; ALFRED, Doctor; JOHN DOE, Doctor,
Neurosurgeon; ROCHELLE MCLANNEY, RN; CAROLYN BURNS, Patient
Liaison; K. C. LOVE, Doctor; DAVID M. FORTNER, Physician
Assistant; CAROL D. GUNTER, Patient Care Coordinator; MERRIE
A. RODDY, LVN; GREGORY N. GILES, RN; MILDRED C. SCOTT, LVN;
SHELLEY JONES, LVN; TONYA KING, Medical Technician; CYNTHIA
STEWART, Clerk; THE OFFICE OF THE ATTORNEY GENERAL OF THE
STATE OF TEXAS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CV-273
--------------------
June 14, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Pete Vallejo, pro se Texas prisoner # 698556, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous and for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii).

-- 1 of 2 --

No. 00-41230
-2-
**570 F.2d 317 (10th Cir. 1978).
Vallejo contends that prison officials and medical personnel
acted with deliberate indifference to his medical needs following
a back injury he sustained in a fall. However, the medical
records demonstrate that Vallejo received appropriate treatment.
The district court, after reviewing Vallejo’s substantial medical
records and a Martinez v. Aaron** report, held that his complaint
had no arguable basis in law of fact and was, therefore,
frivolous. This conclusion was not an abuse of discretion. See
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Although Vallejo may have disagreed with his course of treatment,
that is insufficient to sustain an Eighth Amendment claim. See
Norton v. Dimizana, 122 F.3d 286, 292 (5th Cir. 1997). For the
foregoing reasons, the judgment of the district court is
AFFIRMED.
The dismissal of Vallejo’s complaint counts as a strike for
purposes of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d
383, 385-87 (5th Cir. 1996). Once Vallejo accumulates three
strikes, he will be able to proceed IFP in federal court only if
he “is under imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
AFFIRMED; SANCTIONS WARNING ISSUED.

-- 2 of 2 --