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

                                                                 FILED
                                                             November 27, 2007
                               No. 06-41718
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk
DON WAYNE COOPER

                                           Plaintiff-Appellant

v.

GARY JOHNSON; DOUGLAS DRETKE; RICHARD TRINCI; MICHAEL J
MEGNA; CHUKWUMA ANADUAKA

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 3:04-CV-553


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
      Don Wayne Cooper, Texas prisoner # 336589, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 action as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i). Cooper argues that the district court erred in determining
that certain of his claims accrued in 1997 and were time-barred and in holding
that he had not established that he had a serious medical need for a hearing aid
or that the denial of a hearing aid had caused him harm. He also asserts that



      *
      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should not be published and is not precedent except under the limited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. 06-41718

the district court failed to address his request for cosmetic surgery and for relief
under the Americans With Disabilities Act (ADA).
      We review the dismissal of Cooper’s complaint as frivolous for abuse of
discretion. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). To the
extent that the district court construed Cooper’s complaint as raising claims
based on conduct that occurred in 1997, the district court did not err in holding
that these claims were time-barred. Cooper filed his complaint in September
2004. Accordingly, any 1997 claims are barred by the two-year statute of
limitations applicable to § 1983 actions in Texas. See Stanley v. Foster, 464 F.3d
565, 568 (5th Cir. 2006).
      Cooper argues that he was denied a hearing aid based on Texas
Department of Criminal Justice policy which provides that an inmate who is
able to hear out of one ear will not be provided with a hearing aid. Cooper
contends that this was solely a financial decision. He asserts that the tinnitus
in his left ear causes a constant and severe loud ringing. Cooper argues that the
condition is correctable with a hearing aid as evidenced by the fact that the
hearing aid he purchased prior to his reincarceration relieved his tinnitus and
enabled him to hear from his left ear. This hearing aid broke while Cooper was
incarcerated and was determined to be unrepairable.
      Prison officials violate the constitutional prohibition against cruel and
unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, constituting an unnecessary and wanton
infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297 (1991). Cooper asserted
before the district court that the denial of a hearing aid causes him pain,
interferes with his sleep, and has caused him to become depressed. He also
argued that he was denied a hearing aid based on prison policy and financial
concerns rather than based on his symptoms and individual need. Cooper’s
allegations are sufficient to raise a nonfrivolous issue regarding whether the
provision of a hearing aid is a serious medical need and whether the respondents

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                                 No. 06-41718

were deliberately indifferent to this need. See Wilson, 501 U.S. at 301-03;
Newman v. Alabama, 503 F.2d 1320, 1331 (5th Cir. 1974). Accordingly, we
vacate this portion of the district court’s decision and remand for further
proceedings in accordance with this opinion.
      The district court did not address Cooper’s claims that he was entitled to
cosmetic surgery to repair a deformity to his ear caused by surgery done in the
prison or that he was entitled to relief under the ADA. However, any error was
harmless as Cooper has not shown that he suffered any harm from the failure
to perform cosmetic surgery nor has he shown that he was discriminated against
based on his tinnitus such that relief under the ADA might be implicated. See
Wilson, 501 U.S. at 297.
      AFFIRMED IN PART; VACATED IN PART, AND REMANDED.




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