                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 6, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-10276
                         Summary Calendar



DANIEL IFY IWEGBU,

                                    Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA; T. TAPIA; J. CLINTON; G. ROFFERS;
WILLIAM D. SAGE; DEBBIE MAYES; MARY WHITLEY; LORNA JUAN;
T. HATCHER; JOAN HORMAN; C. NEW; JOHN ASHCROFT,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 5:02-CV-226-BG
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Daniel Ify Iwegbu appeals the dismissal with prejudice of

his civil-rights action under Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971), as frivolous and the dismissal of his

Federal Torts Claim Act (“FTCA”) claim for failure to state a

claim for which relief can be granted.   Iwegbu argues that the

defendants were deliberately indifferent to his serious medical

needs by unreasonably delaying his back surgery and by


     *
       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this opinion should not be published and is not precedent except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.
                            No. 05-10276
                                 -2-

transporting him by bus, knowing that he was in extreme agony

from his back condition.

     Iwegbu’s surgery was not delayed but was performed as

scheduled.   Therefore, Iwegbu’s Bivens claim for deliberate

indifference based on a delay of medical treatment is frivolous.

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

Iwegbu argues that there was a one-year delay from the time his

pain began until his surgery was scheduled but he did not raise a

claim about the one-year delay in the district court.   This

argument will not be considered for the first time on appeal.

See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount

Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).

     With regard to Iwegbu’s arguments that being transferred by

bus caused him pain, the record reveals that prison officials had

checked with Iwegbu’s spine surgeon and been told that Iwegbu

could be transported.   Consequently, prison officials neither

knew of a substantial risk of serious harm to Iwegbu nor ignored

such a risk, and this claim is frivolous.   See Farmer v. Brennan,

511 U.S. 825, 847 (1994).

     Iwegbu next argues that his retaliation claim is valid even

though he ultimately received surgery and that the district court

should not have relied on a prison memorandum indicating that

Iwegbu’s spine surgeon had approved the transfer.   The record

shows that Iwegbu received his surgery as scheduled despite his

having been transferred and that the decision was made to
                             No. 05-10276
                                  -3-

transfer him because of his disciplinary infractions.      His

conclusory arguments that the defendants intended to deny him

surgery but were thwarted by other prison officials who returned

him to the Federal Correctional Institution at Big Spring, Texas,

and that the prison memorandum reflecting his spine surgeon’s

approval of moving him was incredulous fail.       See Johnson v.

Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).

     Iwegbu argues that the district court misapprehended the

nature of his FTCA claim, which involved the negligence of prison

officials in placing him in a position of great pain in

traveling.   Even assuming that Iwegbu did suffer injury as a

result of being transferred, it was not foreseeable because

prison officials checked with the spine surgeon prior to

transferring Iwegbu; thus, Iwegbu failed to state a FTCA claim.

See Skipper v. United States, 1 F.3d 349, 352 (5th Cir. 1993).

      Iwegbu’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983);

therefore, it is DISMISSED.    See 5TH CIR. R. 42.2.   The district

court’s dismissal of Iwegbu’s complaint as frivolous, and the

dismissal of his appeal as frivolous by this court, each count as

“strikes” under 28 U.S.C. § 1915(g).    See Adepegba v. Hammons,

103 F.3d 383, 387-88 (5th Cir. 1996).       Additionally, Iwegbu has

at least one other strike.    See United States v. $69,530.00 in

U.S. Currency, No. 98-50837 (Dec. 13, 2000) (unpub’d).

Consequently, Iwegbu is BARRED from proceeding in forma pauperis
                           No. 05-10276
                                -4-

in any civil action or appeal brought 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); see Adepegba,

103 F.3d at 385.

     APPEAL DISMISSED; 28 U.S.C. § 1915(g) bar imposed.
