     Case: 18-10991      Document: 00515029066         Page: 1    Date Filed: 07/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 18-10991                          FILED
                                  Summary Calendar                    July 10, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
RAMIRO PLASCENCIA-OROZCO,

              Plaintiff-Appellant

v.

ERIC D. WILSON, Warden; J. F. CARAWAY, Regional Director;
IAN CONNORS, Administrator National Inmate Appeals;
DOCTOR BARUTI, M.D.,

              Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:18-CV-527


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Ramiro Plascencia-Orozco, federal prisoner # 40467-198, appeals the
dismissal of his in forma pauperis (IFP) complaint alleging that the defendants
violated his Eighth Amendment rights by denying him Lamisil to treat his
fungal dermatitis. We review the 28 U.S.C. § 1915A(b)(1) dismissal of the
complaint for failure to state a claim de novo, using the same standard


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-10991    Document: 00515029066     Page: 2    Date Filed: 07/10/2019


                                 No. 18-10991

applicable to dismissals under Federal Rule of Civil Procedure 12(b)(6). See
Legate v. Livingston, 822 F.3d 207, 209-10 (5th Cir. 2016).
      Since Plascencia-Orozco alleges, at most, only that the defendants
unsuccessfully or negligently treated his fungal infection, his allegations are
insufficient to state a claim for deliberate indifference to his serious medical
needs. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Likewise, his
bald legal assertions that the defendants were deliberately indifferent are not
sufficient to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
district court did not err by dismissing the complaint. See Legate, 822 F.3d at
209-10.
      The appeal is DISMISSED AS FRIVOLOUS.               See 5TH CIR. R. 42.2.
Plascencia-Orozco’s motion for appointment of counsel is DENIED.             The
district court’s dismissal of Plascencia-Orozco’s complaint and our dismissal of
his appeal both count as strikes under 28 U.S.C. § 1915(g). See Coleman v.
Tollefson, 135 S. Ct. 1759, 1763-64 (2015); Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996).      Plascencia-Orozco is WARNED that if he
accumulates a third strike, he may not proceed IFP in any civil action or appeal
while he is incarcerated or detained in any facility unless he is in imminent
danger of serious physical injury. See § 1915(g).




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