               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 00-41434
                          Conference Calendar



ESTEBAN RAMIREZ HERNANDEZ,

                                           Plaintiff-Appellant,

versus

CAROL D. GUNTER, Patient Care Coordinator; DAVID
M. FONTER , Physician Assistant; K.C. LOVE, Doctor;
H. CLAYTON, Doctor; PAT CALCATE, Patient Liaison,

                                           Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:00-CV-310
                       --------------------
                           June 18, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     Esteban Ramirez Hernandez (Ramirez), Texas inmate #763315,

appeals from the magistrate judge’s dismissal as frivolous of his

civil rights complaint.    Ramirez proceeded to final judgment

before the magistrate judge.     See 28 U.S.C. § 636(c).   We review

for an abuse of discretion.     See Berry v. Brady, 192 F.3d 504,

507 (5th Cir. 1999).

     For the first time on appeal, Ramirez argues that the

defendants were deliberately indifferent to his medical needs 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that this opinion should not be published and is not precedent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. 00-41434
                                  -2-

leaving him at his assigned job in a metal fabrication

environment.     He asserts that the noise in the work environment

was harmful to his ear condition and hindered any recovery.        We

do not consider this new issue raised for the first time on

appeal.     See Leverette v. Louisville Ladder Co., 183 F.3d 339,

342 (5th Cir. 1999).

     Although Ramirez contends that the defendants were

deliberately indifferent to his medical needs, he admits that he

received medical treatment.     As he asserted before the magistrate

judge, Ramirez bases his contention of deliberate indifference on

the lack of immediate medical care for his ear problem and on the

lack of success by the doctors in treating his chronic ear

condition.     Ramirez’s allegations neither rise to the level of

constitutional tort nor constitute deliberate indifference.        See

Farmer v. Brennan, 511 U.S. 825, 837 (1994); Harris v. Hegmann,

198 F.3d 153, 159 (5th Cir. 1999).

     The magistrate judge did not abuse his discretion in

dismissing Ramirez’s complaint as frivolous.       See Berry, 192 F.3d

at 507.     This appeal is without arguable merit and is therefore

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

1983).     The appeal is DISMISSED as frivolous.    See 5TH CIR.

R. 42.2.

     This court’s dismissal counts as Ramirez’s second strike

pursuant to 28 U.S.C. § 1915(g); the first strike arising from

the dismissal in the district court.        See Adepegba v. Hammons,

103 F.3d 383, 388 (5th Cir. 1996).     If Ramirez accumulates three

strikes, he may not proceed in forma pauperis in any civil action
                           No. 00-41434
                                -3-

or appeal filed while he is incarcerated or detained in any

facility unless he is in imminent danger of serious physical

injury.   See 28 U.S.C. § 1915(g).   Ramirez is cautioned to review

any pending appeals to ensure that they do not raise frivolous

issues.

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
