     Case: 10-40913 Document: 00511484071 Page: 1 Date Filed: 05/20/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 20, 2011
                                     No. 10-40913
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

OTHA JAMES,

                                                   Plaintiff-Appellant

v.

UNIVERSITY OF TEXAS MEDICAL BRANCH MEDICAL CENTER AND
PHARMACY; CMC PHARMACY; C. KYLE; D. STEBBINS; R. GILMARTIN; S.
LIVELY; Q. NIX; J. SECKLET; UNKNOWN ASHFORD,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:09-CV-489


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Otha James, Texas prisoner # 1258537, has had a series of operations on
his right hand since breaking it in 1998. He has suffered pain as a result and
underwent surgery again in 2009. Both before and after this surgery, James’s
health care providers prescribed Tylenol #3. According to James, on numerous
occasions, various prison personnel delayed providing him Tylenol #3 or refused



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40913 Document: 00511484071 Page: 2 Date Filed: 05/20/2011

                                  No. 10-40913

to provide it, in violation of the Eighth Amendment.         Following a hearing
pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the magistrate
judge, proceeding with consent of both parties, determined that James’s
complaint was frivolous and failed to state a claim and dismissed the suit
pursuant to 28 U.S.C. § 1915A. James now appeals.
      We review a dismissal pursuant to § 1915A de novo. See Longoria v.
Dretke, 507 F.3d 898, 900 (5th Cir. 2007). Our review of the record satisfies us
that the magistrate judge correctly dismissed James’s claims that the defendants
acted with deliberate indifference to a serious medical need. See Domino v.
Texas. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). We thus
conclude that James’s appeal is without arguable merit, and we dismiss it as
frivolous. See 5 TH C IR. R. 42.2. James is cautioned that the dismissal of his suit
by the magistrate judge and the dismissal of his appeal count as strikes
pursuant to 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
385-87 (5th Cir. 1996). He is further cautioned that if he accumulates three
strikes under § 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. See § 1915(g).
James’s motion for appointment of counsel is denied.
      APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED;
MOTION FOR APPOINTMENT OF COUNSEL DENIED.




                                         2
