* 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should not be published and is not precedent except under the limited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. 07-10020

Summary Calendar

EMILIO CHAVEZ, JR.

Plaintiff-Appellant

v.

UNIVERSITY MEDICAL CENTER; LUBBOCK COUNTY; LUBBOCK

COUNTY DETENTION CENTER; CITY OF LUBBOCK; CINDY G. HILL;

JOHN DOE, Contract Doctor to Lubbock County Jail; DOUGLAS DRETKE,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION; DAVID GUTIERREZ, Sheriff

Lubbock County; R VOGELESAN, Warden, Dalhart Unit

Defendant-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:06-CV-157

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Emilio Chavez, Jr., Texas prisoner # 1369270, is appealing the magistrate

judge’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous. Chavez argues

that his criminal conviction was the result of the denial of due process and the

United States Court of Appeals

Fifth Circuit

F I L E D

March 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-10020

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

2

ineffective assistance of counsel and that he is entitled to damages for the loss

of liberty and property.

Chavez acknowledged during the Spears1 hearing that his conviction has

not been set aside or otherwise invalidated. Because Chavez’s conviction has not

been declared invalid by a state tribunal, called into question by a federal habeas

court, or otherwise invalidated, Chavez cannot seek damages pursuant to § 1983.

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Thus, the magistrate judge did

not abuse its discretion in dismissing this claim as frivolous.

Chavez argues that the Lubbock County officials and medical personnel

acted with deliberate indifference to his medical needs by failing to provide him

with chemotherapy treatments, denying him pain medications, and delaying his

treatment when he suffered a heart attack.

Chavez’s authenticated medical records rebut his assertions that the

defendants acted with deliberate indifference to his medical condition. The

records reflect that he was examined by doctors on several occasions and was

prescribed and dispensed numerous medications while he was incarcerated in

the Lubbock Jail. The records do not support his assertion that he was denied

prescribed chemotherapy or that he suffered any objective symptoms or pain as

a result of lung cancer. Nor do the records reflect that there was a delay in

medicaltreatment that resulted in substantial harm to Chavez. Chavez has not

shown that the magistrate judge abused her discretion in dismissing his

complaint as frivolous. Farmer v. Brennan, 511 U.S. 825, 839-41 (1994);

Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).

Because Chavez has not raised an issue of arguable merit, the appeal is

DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983); 5TH CIR. R. 42.2. The district court’s dismissal of Chavez’s action as

frivolous and the dismissal of this appeal as frivolous each count as a strike for
No. 07-10020

3

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

(5th Cir. 1996). We caution Chavez that if he accumulates three strikes under

28 U.S.C. § 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. 

APPEAL DISMISSED; SANCTION WARNING ISSUED.