                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 18, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 06-20097
                           Summary Calendar


JOHN W. MELTON,

                  Plaintiff-Appellant


     v.

BRAD LIVINGSTON, Director; LELAND HEUSZEL, Sr. Warden-Byrd Unit;
WILLIAM SAMNEH, Medical Director; LLOYD ASCHBURGER, P.A.,

                  Defendants-Appellees



                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:05-CV-1278
                       --------------------


Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

     John W. Melton, Texas prisoner # 1168128, appeals the

dismissal with prejudice of his 42 U.S.C. § 1983 complaint

pursuant to 28 U.S.C. § 1915A(b)(1).     Although the district court

dismissed Melton’s complaint because it found his complaint

lacked an arguable basis in law, we affirm the district court’s

judgment because Melton’s complaint lacked an arguable basis in


     *
       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this opinion should not be published and is not precedent except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. 06-20097
                                 -2-

fact and because it failed to state a claim upon which relief

could be granted.    See § 1915A(b)(1); Neitzke v. Williams, 490

U.S. 319, 327 (1989); see Sojourner T v. Edwards, 974 F.2d 27,

30 (5th Cir. 1992) (we may affirm on any grounds supported by the

record).

     On appeal, Melton argues that the “defendant(s)” knew that

making him work in the kitchen and the laundry posed a risk to

his health and that it could result in his death; that the

defendants’ actions, and more specifically Major Joe Blanton’s

actions, in removing him from the maintenance department and

placing him in the kitchen and the laundry were retaliatory; that

Dr. Hung Dao knew his work assignment was posing a danger to his

health; and that the defendants’ actions caused him to cease

getting interferon treatment for Hepatitis C.    He states that a

nurse has told him that restarting the interferon treatment would

most likely be fatal.

     The district court’s dismissal of Melton’s claims of

deliberate indifference due to his job reassignments was proper

because Melton failed to show that Blanton or any other named

defendant was deliberately indifferent to a substantial risk of

harm to Melton’s health when Melton was assigned to the kitchen

and the laundry.    See Farmer v. Brennan, 511 U.S. 825, 828, 837,

847 (1994); Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989).

Although Melton complains of his second reassignment to the

kitchen in his appellate brief, we do not consider these factual
                             No. 06-20097
                                  -3-

allegations as he did not make these factual allegations in the

district court.    See Leverette v. Louisville Ladder Co., 183 F.3d

339, 342 (5th Cir. 1999).    To the extent Melton’s complaint can

be liberally construed as complaining that Dr. Dao was

deliberately indifferent to his medical needs, his claim is

without merit.    See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

     Melton’s claims of retaliation by Blanton fail because the

attachments to his § 1983 complaint indicate that Melton

repeatedly complained of the prison’s sack lunches, that officers

and prison officials checked into his complaints and found them

to be without merit, and that Blanton reassigned Melton to the

kitchen so that Melton could understood how the sack lunches were

made.   Thus, even if there arguably was a chronology of events

which supports Blanton’s assertion of retaliation and even if

Blanton had a retaliatory motive, there was a nonretaliatory

purpose for reassigning Melton to the kitchen - - having Melton

understand how the sack lunches were made.    See Jones v.

Greninger, 188 F.3d 322, 325 (5th Cir. 1999); McDonald v.

Steward, 132 F.3d 225, 231 (5th Cir. 1998).   Melton cannot show

that but for Blanton’s alleged retaliatory motive, his

reassignment to the kitchen would not have occurred.     See

McDonald, 132 F.3d at 231.

     Melton concedes that the actions of physician’s assistant

Lloyd Ashburger, standing alone, did not violate his

constitutional rights.   Moreover, his remaining claims of the
                            No. 06-20097
                                 -4-

denial of medical care, of the denial of access to courts, and of

retaliation have been abandoned.     See Yohey v. Collins, 985 F.2d

222, 225 (5th Cir. 1993).

     Melton’s appeal is frivolous and is dismissed.    See Howard,

707 F.2d at 220; 5TH CIR. 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, 385-87 (5th Cir. 1996).     In

Melton v. Lock, No. 05-20770, this court advised Melton that he

has two strikes.   Accordingly, Melton now has three strikes under

§ 1915(g).   Melton is therefore barred from proceeding in forma

pauperis in any civil action or appeal brought in a United States

court unless he is under imminent danger of serious physical

injury.   See § 1915(g).

     APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.
