* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 14, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40448

Summary Calendar

STEVIE WINSTON,

Plaintiff-Appellant,

versus

DAVID STACKS, Sr. Warden; G. WAKEFIELD, Asst. Warden; 

FRANKIE REESCANO, Asst. Warden; UNIDENTIFIED COOPER, Lt.;

UNIDENTIFIED RAINS, Sgt.; KELLIE WARD, Asst. Admin.; 

RUSSELL B. BAILEY, Asst. Admin.; GUY SMITH, Asst. Admin.; 

SHANTA CRAWFORD, Practice Manager; DR. BETTY WILLIAMS; 

CHESTER JONES, PA; BRENDA HOUGH, PA; CATHI BLAKE, 

Nurse Clinician, II; LVN GENGER GALLOWAY; JOSE AGUILERA, 

CMA; DOUG DRETKE, DIRECTOR TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; OFFICE OF 

THE ATTORNEY GENERAL OF TEXAS,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(99:05-CV-141)

_________________________________________________________________

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Stevie Winston appeals the district court’s 28 U.S.C. § 1915A

dismissal, for failure to state a claim, of his 42 U.S.C. § 1983
2

action against various prison officials, asserting deliberate

indifference to his serious medical needs. Winston renews his

claim that the defendants were deliberately indifferent to his

serious medical needs by assigning him work that violated his

medical restrictions and for disciplining him when he was unable to

perform that work. He maintains he pleaded all essential elements

of an Eighth Amendment violation and that dismissal for failure to

state a claim was therefore in error.

Section 1915A allows for dismissal of a prisoner’s civil

action if, inter alia, it is frivolous or fails to state a claim

for relief. 28 U.S.C. § 1915A(b)(1). A district court may dismiss

a complaint as frivolous “‘where it lacks an arguable basis either

in law or in fact’”. Denton v. Hernandez, 504 U.S. 25, 31 (1992)

(internal citations omitted). A dismissal for failure to state a

claim for relief will be upheld “only if, taking the plaintiff’s

allegations as true, it appears that no relief could be granted

based on the plaintiff’s alleged facts”. Bass v. Parkwood Hosp.,

180 F.3d 234, 240 (5th Cir. 1999). Because Winston’s complaint was

dismissed as both frivolous and for failure to state a claim,

review is de novo. See Velasquez v. Woods, 329 F.3d 420, 421 (5th

Cir. 2003). 

Winston has not alleged, and the records do not show, that his

medical condition was aggravated, or that he suffered any injury or

harm, as a result of his work assignment. Therefore, even if his
3

allegations are accepted as true, he has failed to allege the

requisite claim of “deliberate indifference” in connection with his

work assignment. See Farmer v. Brennan, 511 U.S. 825, 828 (1994)

(“A prison official’s ‘deliberate indifference’ to a substantial

risk of serious harm to an inmate violates the Eighth Amendment.”);

Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989) (an Eighth

Amendment violation results when the type of work assigned worsens

a prisoner’s pathological condition). 

Because of Winston’s medical condition, medical personnel

placed restrictions on his prison job assignment; the record shows

they were responsive to his physical limitations and placed him on

a medical work squad because of these limitations. Winston claims,

however, that medical personnel should have imposed even stricter

limits on his job assignment. Winston’s disagreement with his

medical classification does not state a constitutional claim. See

Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992). In this

regard, his claim that the documents contained in the

administrative record are fraudulent will not be considered because

it is raised for the first time on appeal. See Varnado v. Lynaugh,

920 F.2d 320, 321 (5th Cir. 1991). 

As the district court determined, the fact that Winston was

required to work does not raise a constitutional claim for

deliberate indifference. See Mendoza v. Lynaugh, 989 F.2d 191, 195

(5th Cir. 1993). Furthermore, prison officials also did not
4

violate his constitutional rights by disciplining him for refusing

to work. See id.; Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir.

1988). Additionally, Winston’s assertion that the district court

erred in dismissing his case without providing him with notice and

the opportunity to amend is unavailing because he does not state on

appeal any facts he would have included in an amended complaint

that might have changed the outcome in his case. See Ashe v.

Corley, 992 F.2d 540, 542 (5th Cir. 1993). 

Winston renews his contention that the defendants were

deliberately indifferent in failing to provide adequate medical

care, but, as he concedes and as the administrative record shows,

he received medical attention on the numerous occasions he

requested it. His dissatisfaction with the treatment he received

is insufficient to state a constitutional claim. See Varnado, 920

F.2d at 321. Winston’s new assertion that he has been denied

better and more extensive medical care due to cost will not be

considered. See id. Moreover, his allegations in that regard are

wholly conclusional and do not give rise to a constitutional claim.

See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).

Although the judgment is affirmed, it incorrectly states that

the complaint was dismissed pursuant to 42 U.S.C. § 1997A, rather

than 28 U.S.C. § 1915A. The error is clerical and did not affect

the substance of the dismissal of the complaint. Nevertheless, the
5

matter is remanded to the district court for the limited purpose of

correcting the clerical error. See FED. R. CIV. P. 60(a). 

The district court’s dismissal of Winston’s complaint counts

as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Winston 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 detained in any facility unless

he is under imminent danger of serious physical injury. See §

1915(g).

AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR; THREESTRIKES WARNING ISSUED.