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

                                                FILED
                                                              December 30, 2009
                               No. 09-40319
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

OLEGARIO PUGA-OLMOS,

                                           Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; BUREAU OF PRISONS,

                                           Defendants - Appellees


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                               No. 1:08-CV-362


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
      Olegario Puga-Olmos (Puga), federal prisoner # 39505-037, filed suit for
damages and injunctive relief, pursuant Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims
Act (FTCA), asserting that the United States of America and the Bureau of
Prisons had acted with deliberate indifference to his serious medical needs and
negligently with regard to the treatment of his injured shoulder. Puga has not



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                No. 09-40319

shown that the district court erred in concluding that Puga could not assert a
claim for damages against the defendants under Bivens, as those parties were
not individuals. See Bivens, 403 U.S. at 395-97; Affiliated Prof’l Home Health
Care Agency v. Schalala, 164 F.3d 282, 286 (5th Cir. 1999). Nor has he shown
that the district court erred in determining that the FTCA claim was premature
because Puga had not exhausted his administrative remedies prior to the
institution of the action. See McNeil v. United States, 508 U.S. 106, 111-12
(1993); 28 U.S.C. § 2675(a) (2006).
      Because the appeal is frivolous, it is DISMISSED. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983); 5 TH C IR. R. 42.2. The dismissal of this
appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We CAUTION Puga 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).




                                      2
