                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 15, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41021
                         Summary Calendar



EDWARD LEE HOLLOWAY,

                                    Plaintiff-Appellant,

versus

DR. ALBERT OGUEJIOFOR; P. A. LYNCH; RN CAROL SELF;
MELODY MORRIS; AVIS LOPEZ; UNIVERSITY OF TEXAS SYSTEM,
HEALTH SERVICES DIVISION; DR. CHARLES MULLINS, Vice
Chancellor,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 3:02-CV-323
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Edward Lee Holloway, Texas prisoner # 744655, appeals the

district court’s dismissal of his pro se, in forma pauperis

(“IFP”), 42 U.S.C. § 1983 complaint for failure to state a claim

upon which relief can be granted.   Holloway alleged that the

defendants were deliberately indifferent to his serious medical

needs when he had a heart attack.



     *
       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this opinion should not be published and is not precedent except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. 05-41021
                                  -2-

     We previously vacated the district court’s judgment

dismissing Holloway’s suit as frivolous and directed the district

court to determine whether Holloway had exhausted his

administrative remedies.     See Holloway v. Oguejiofor,

No. 04-40246 (5th Cir. Oct. 20, 2004).      On remand, Holloway

sufficiently alleged that he exhausted the administrative

remedies available to him.     See Days v. Johnson, 322 F.3d 863,

865 (5th Cir. 2003).

     To the extent Holloway attempts to incorporate arguments he

made in previous pleadings to this court into his appellate

brief, he may not do so.     See Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993).    Moreover, he cannot simply rely on this

court’s previous opinion vacating the district court’s dismissal

of his suit as frivolous to support his argument that the

district court erred in dismissing his suit for failure to state

a claim.   Contrary to Holloway’s assertion, the standard of law

for dismissing a case as frivolous is not the same as that for

dismissing a case for failure to state a claim.      See Martin v.

Scott, 156 F.3d 578, 580 (5th Cir. 1998); Clay v. Allen, 242 F.3d

679, 680 (5th Cir. 2001).    A suit can fail to state a claim and

be nonfrivolous.   See Neitzke v. Williams, 490 U.S. 319, 320

(1989).

     Holloway’s failure to properly address the district court’s

dismissal of his suit for failure to state a claim does, standing

alone, warrant the dismissal of this appeal as frivolous.         See
                            No. 05-41021
                                 -3-

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987).    Additionally, however, we note that

Holloway’s allegations failed to state a claim that the

defendants were deliberately indifferent to his serious medical

needs.    Nurse Morris administered three electrocardiograms

(“EKG”) over the course of approximately two hours, twice

administered medicine that was ordered by Physician’s Assistant

Lynch, and did not release Holloway to his cell until a normal

EKG was conducted, Holloway told her his pain was dissipating,

and Holloway was able to walk unassisted.    While Holloway may

have disagreed with the treatment he received from Morris and

Lynch, their level of care does not demonstrate that they were

deliberately indifferent to his medical needs or that they knew

there was a substantial risk of harm in releasing him to his

cell.    See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

Similarly, Nurse Self’s actions in checking Holloway’s heart

despite his assertion of indigestion and her treatment of his

symptoms with medicine for indigestion after an EKG yielded non-

specific results does not indicate that she was deliberately

indifferent to his medical needs or that she knew he faced a

substantial risk of harm if he was released back to his cell.

See id.

     During a follow-up examination, Nurse Lopez “diagnosed”

Holloway with heartburn and referred his chart to a doctor for an

appointment.    Although Nurse Lopez’s misdiagnosis may have
                            No. 05-41021
                                 -4-

constituted negligence, her belief that Holloway was suffering

from heartburn belies Holloway’s assertion that she knew he was

suffering from an ongoing heart attack and that she was

deliberately indifferent to his serious medical need of treatment

for that medical problem.    Id.

     Finally, Holloway made no specific allegations in support of

his assertion that Dr. Charles Mullins failed to supervise his

employees at the University of Texas System, Health Services

Division properly.    He also failed to allege that Drs. Mullins or

Oguejiofor were personally involved in his medical treatment.

See Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990).

     Holloway’s appeal is without arguable merit and is

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

1983).   Because the appeal is frivolous, it is DISMISSED.    See

5TH CIR. R. 42.2.   Holloway is cautioned that the dismissal of

this appeal as frivolous counts as a strike under 28 U.S.C.

§ 1915(g), as does the district court’s dismissal of his

complaint.    See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th

Cir. 1996).   He is also cautioned that if he accumulates three

strikes under 28 U.S.C. § 1915(g), he will not be able to proceed

IFP 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 28 U.S.C. § 1915(g).

     APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.
