* 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that this opinion should not be published and is not precedent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. 01-40663

Conference Calendar

 

DONALD RAY LEWIS,

Plaintiff-Appellant,

versus

AMADO IGLESIAS; VICTOR RODRIGUEZ; DENISE BRUNSON;

WILLIAM STEPHENS, Assistant Warden; TOMMY L. JACKSON;

DUC V. TRON; WILLIAM ATHERTON BERGEY; SHANDLYN KOEHNE;

MELINDA BOZARTH; BEVERLY RIEDY,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. V-98-CV-71

--------------------

February 20, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Donald Ray Lewis, Texas prisoner # 535898, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 action for

failure to state a claim upon which relief may be granted

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Lewis argues that the

defendants denied him adequate medical care for a skin condition

which caused him to suffer severely dry and cracked skin. He

concedes that he was examined by a nurse and that he was given
No. 01-40663 

-2-

cortisone skin cream, but argues that he was not given enough

cream to treat his condition. Lewis’ allegations at most amount

to unsuccessful medical treatment or negligence, which does not

constitute a constitutional violation. See Varnado v. Lynaugh,

920 F.2d 320, 321 (5th Cir. 1991). Further, Lewis has not shown

that he suffered injuries as he conceded that he no longer has

the skin condition. See Herman v. Holiday, 238 F.3d 660, 666

(5th Cir. 2001).

Lewis also argues that he was denied adequate dental care in

that a dentist damaged one of his teeth and ultimately had to

pull it, and he was not given regular dental cleanings. Lewis’

allegations at most amount to negligence and not a constitutional

violation. See Varnado, 920 F.2d at 321. Further, he concedes

that he is currently receiving dental care and cleanings after

his transfer to another unit.

Lewis argues that the defendants denied him a change in his

custodial classification in retaliation for his filing

administrative grievances. Lewis’ allegations do not establish a

retaliatory motive. See Woods v. Smith, 60 F.3d 1161, 1166 (5th

Cir. 1995) (inmate must either produce direct evidence of

retaliatory motive or allege a chronology of events from which

retaliation might plausibly be inferred). Further, Lewis has no

constitutionally protected liberty interest in his custodial

classification or in the loss of the opportunity to earn goodtime credits. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir.

1995); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988).
No. 01-40663 

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Lewis has filed a supplemental pleading, arguing that the

defendants are retaliating against him by denying indigent legal

materials and access to the courts, education, and parole, and by

keeping him in a maximum security prison although he has not

committed any disciplinary violations. Issues must be raised in

the district court to be preserved for appeal. See Burch v.

Coca-Cola Co., 119 F.3d 305, 319 (5th Cir. 1997) (“This court

will not consider on appeal a claim not submitted to the district

court.”). Accordingly, Lewis’ additional retaliation claim may

not be considered. Even if the issue is considered, Lewis’

allegations do not establish a retaliatory motive. See Woods, 60

F.3d at 1166. Further, Lewis has not shown that he was

prejudiced or prevented from filing a pleading in a specific

action as a result of the alleged denial of access to the courts

or indigent materials. See Lewis v. Casey, 518 U.S. 343, 349

(1996).

Lewis’ appeal is without arguable merit and, therefore, is

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

(5th Cir. 1983); 5TH CIR. R. 42.2. The district court’s dismissal

of Lewis’ complaint and this court’s dismissal of the appeal as

frivolous count as two strikes for purposes of 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th

Cir. 1996). Lewis is cautioned that if he accumulates three

strikes, 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 28 U.S.C. § 1915(g).
No. 01-40663 

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APPEAL DISMISSED; SANCTIONS WARNING ISSUED.