* 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that this opinion should not be published and is not precedent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. 02-10819

Conference Calendar

 

ALVIN TODD POINTER,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, INSTITUTIONAL DIVISION; JOHN MIDDLETON UNIT, MEDICAL

FACILITY; JIM RUDD UNIT MEDICAL FACILITY; GONZALEZ, Doctor,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:01-CV-181-BG

- - - - - - - - - -

February 19, 2003

Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Alvin Todd Pointer appeals the magistrate judge’s dismissal

with prejudice in part, and the dismissal without prejudice for

failure to exhaust, of his 42 U.S.C. § 1983 claims regarding

medical treatment and work assignment. In light of his receipt

of physical therapy for five months, surgery on his shoulder, and

reinstatement of medical restrictions, he cannot claim deliberate
No. 02-10819

-2-

indifference to his medical needs. See McCormick v. Stalder, 105

F.3d 1059, 1061 (5th Cir. 1997). In fact, he refers to the

hospital’s “negligence,” for which 42 U.S.C. § 1983 relief is

unavailable. Daniels v. Williams, 474 U.S. 327 (1986). 

Insofar as Pointer is arguing that his lack of medical

restrictions was unconstitutional, this amounts, at most, to a

claim of negligence. See Varnado v. Lynaugh, 920 F.2d 320, 321

(5th Cir. 1991). Such allegations do not amount to deliberate

indifference to his serious medical needs. Id. The district

court did not err in dismissing Pointer’s claims regarding

disagreement with his classification. 

Pointer’s assertion that he filed a grievance refers to the

grievance filed in January 2001. Although it does not mention

the hoe squad, the work assignment of which he complained, it

does mention work in the fields during the same period. Assuming

that the hoe squad and the fields are the same or related work

assignments, the magistrate judge erred in finding that Pointer

failed to file any grievances concerning his assignment to the

hoe squad prior to June 2001. Nonetheless, as Pointer has failed

to show that prison officials knew that work assignment would

significantly aggravate his shoulder condition, he has failed to

show a violation of the Eighth Amendment. Jackson v. Cain, 864

F.2d 1235, 1246 (5th Cir. 1989). 

Pointer’s claim that the missing pages of his medical file

was a constitutional violation is frivolous. 
No. 02-10819

-3-

This appeal is without arguable merit and is hereby

DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983); 5th Cir. R. 42.2. The magistrate judge’s

dismissal of the present case as frivolous and for failure to

exhaust and this court’s dismissal of Pointer’s appeal as

frivolous count as two strikes against him for purposes of

28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-

88 (5th Cir. 1996); 28 U.S.C. § 1915(e)(2)(B)(i). Pointer is

hereby warned that if he accumulates three “strikes” under

28 U.S.C. § 1915(g), he will not be able to 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.