                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    December 21, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-11277
                             Summary Calendar


BENITO V DIAZ,

                             Plaintiff-Appellant,

versus

WADE Turner, Sheriff, Coleman County; JO JONES, Chief Deputy
Sheriff; GARY BERRY, Deputy Sheriff; KEN BRIXEY, Deputy Sheriff;
JAMES MORRIS, Deputy Sheriff, JACK KENNEY, Head Jailor, Coleman
County Jail
                         Defendants-Appellees.



           Appeal from the United States District Court
                 for the Northern District of Texas
                       USDC No. 6:02-CV-70-BI



Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.


PER CURIAM:*

     Benito V. Diaz, Texas prisoner # 12229485 proceeding pro se

and in forma pauperis (IFP), appeals the dismissal of his 42 U.S.C.

§ 1983 action as frivolous under § 1915(e)(2)(B)(i).1         Diaz alleges


     *
         Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
     1
         28 U.S.C. § (e)(2)(B)(i) reads:
(e)...
   (2) Notwithstanding any filing fee, or any portion thereof, that may have
   been paid, the court shall dismiss the case at any time if the court
   determines that--
   ...
      (B) the action or appeal--
the violation of his right to access to the courts2 and deliberate

indifference to his medical conditions.3,4

          We review a dismissal of a complaint as frivolous under §

1915(e)(2)(B)(i) for an abuse of discretion.5           A district court may

dismiss an IFP complaint as frivolous if it lacks an arguable basis

in law or fact.6 We have reviewed the record and find neither plain

error nor abuse of discretion in the reasoning of the district

court.

      Diaz’s assertions in his complaint and in the Spears7 hearing,

fail to      demonstrate    prejudice    to   his   ability   to     prepare   and

transmit any necessary legal document to the court.                    Prisoners

generally enjoy a constitutional right of access to the courts.8

However, there does not exist “an abstract, freestanding right to

a law library or legal assistance;” inmates are guaranteed “the

conferral of a capability–the capability of bringing contemplated


           (i) is frivolous or malicious...
      2
         See Bounds v. Smith, 430 U.S. 817, 828 (1977); see also McDonald v.
Steward, 132 F.3d 225, 230 (5th Cir. 1998).
      3
           Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993).
      4
         Diaz expressly abandons a third contention that he was denied access
to mail. See Marple v. Kurzweg, 902 F.2d 397, 399 n.2 (5th Cir. 1990) (stating
that a claim, neither argued nor briefed on appeal, is abandoned).
      5
           See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998).

      6
           Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
      7
         Spears v. McCotter, 766 F.2d 179, 180-81 (5th Cir. 1985) (establishing,
in pro se cases, the option of an evidentiary hearing before a magistrate judge,
in lieu of a motion for a more definite statement of the claim), overruled on
other grounds, Neitzke v. Williams, 490 U.S. 319, 324 (1989).
      8
           Jones v. Gretinger, 188 F.3d 322, 325 (5th Cir. 1999).
challenges to sentences or conditions of confinement before the

courts.”9    Therefore, a prisoner must “demonstrate that the alleged

shortcoming in the library or legal assistance program hindered his

efforts to pursue a legal claim.”10          Diaz received 241 of the 260

cases he requested, and he was not convicted of the crime for which

he claims to have been denied access to legal documents.                     The

district court did not abuse its discretion, neither in finding

that Diaz failed to establish actual prejudice stemming from any

alleged impediment to his right of access to the courts nor,

consequently, in dismissing as frivolous Diaz’s complaint.

     Further, Diaz’s allegations in his complaint and in his Spears

hearing fail to establish that the defendants acted with deliberate

indifference to his medical needs, as prohibited by the Eighth

Amendment’s protection against cruel and unusual punishment.11                 A

finding of deliberate indifference “must rest on the facts clearly

evincing ‘wanton’ actions on the part of the defendants,”12 that the

defendants     knew   of   a   substantial   risk   of      serious   harm   and

disregarded “that risk by failing to take reasonable measures to




     9
          Lewis v. Casey, 518 U.S. 343, 351 & 355 (1996).
     10
          Jones, 188 F.3d at 325.
     11
          Mendoza, 989 F.2d at 193.
     12
          Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).

                                       3
abate it.”13

      Diaz’s     complaint        alleged       the   inadequacy    of    access   to

medications,14      and     the   record    does      not   demonstrate    a   wanton

disregard for Diaz’s health, pertaining thereto. Diaz received

medical treatment, including emergency room care, medication (88

pain relief tablets in a span of twenty days), and multiple

evaluations      by     a    nurse       practitioner.         Diaz’s     deliberate

indifference claim arises out of a disagreement with the medical

treatment that he received–not being provided non-prescription

medication     on     demand;     such    disagreement       does   not   constitute

deliberate indifference to medical needs.15                     Consequently, the

district court did not abuse its discretion in dismissing Diaz’s §

1983 claim, as alleged.

      Diaz is warned that the affirmance of the district court’s

dismissal of his complaint as frivolous constitutes a "strike" for

purposes of the three strikes provision, 28 U.S.C. § 1915(g).16

Diaz is cautioned that if he accumulates three strikes, he will not



      13
          Farmer v. Brennan, 511 U.S. 825, 847 (1994); see also Graves v.
Hampton, 1 F.3d 315, 319 (5th Cir. 1993) (stating that “it is firmly established
that negligent or mistaken medical treatment or judgment does not implicate the
Eighth Amendment and does not provide the basis for a civil rights action”).
      14
          Diaz proffers new arguments in subsequent motions and court filings
that the district court properly refused to entertain. See Yohey v. Collins,
985, F.2d 222, 224-225 (5th Cir. 1993).
      15
           See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).
      16
         See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996) (stating “it
is straightforward that affirmance of a district court dismissal as frivolous
counts as a single ‘strike’”).

                                            4
be permitted 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.17

     The judgment of the district court is AFFIRMED and SANCTION

WARNING ISSUED.




     17
          See 28 U.S.C. § 1915(g).


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