                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 6, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-11365
                          Summary Calendar


ROMUALDO LOPEZ-HEREDIA,

                                    Plaintiff-Appellant,

versus

UNIVERSITY OF TEXAS MEDICAL BRANCH HOSPITAL; JOHN DOE #1, M.D.
Galveston; JOHN DOE #2-10; DR. SHAH, Opthalmologist; DR. JORGE L.
PARTIDA, Chief Health Programmer; JOSEPH HARO, Warden, Federal
Correctional Institution, Big Spring; BUREAU OF PRISONS; JOHN
ASHCROFT, U.S. ATTORNEY GENERAL, Individually and in his Official
Capacity,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                       USDC No. 5:04-CV-14
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Romualdo Lopez-Heredia (Lopez), federal prisoner # 51575-

198, appeals from the dismissal as frivolous, pursuant to

28 U.S.C. § 1915A and 42 U.S.C. § 1997e, of his action brought

pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims

Act (FTCA), 28 U.S.C. §§ 2671-80.   Lopez makes no arguments


     *
       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this opinion should not be published and is not precedent except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. 05-11365
                                 -2-

relevant to the dismissal of his Bivens claims; he has abandoned

any such arguments for appeal.    See In re Municipal Bond

Antitrust Litigation, 672 F.2d 436, 439 n.6 (5th Cir. 1982).

     Lopez contends that the physician defendants were agents of

the Government for purposes of the FTCA and that the duty imposed

on the Bureau of Prisons (BOP) by 18 U.S.C. § 4042 to care for

prisoners extends the scope of the FTCA to include the physician

defendants.   The FTCA’s wavier of sovereign immunity does not

extend to negligent acts of independent contractors such as the

University of Texas Medical Branch (UTMB) or contract physicians.

See Linkous v. United States, 142 F.3d 271, 275-77 (5th Cir.

1998).   Lopez’s contention that the independent-contractor

physician defendants in his case were agents of the Government is

unavailing.

     Assuming, arguendo, that Dr. Jorge Partida was a federal

employee, then recovery from the United States might be possible

under to the FTCA.    See Bodin v. Vagshenian, 462 F.3d 481, 484

(5th Cir. 2006); Gil v. Reed, 381 F.3d 649, 658 (7th Cir. 2004).

The BOP’s FTCA claims procedure is separate from the BOP’s

administrative remedies procedure, see 28 C.F.R.

§§ 543.30-543.32.    A plaintiff must exhaust administrative

remedies before pursuing relief under the FTCA.    28 U.S.C.

§ 2675(a); Frantz v. United States, 29 F.3d 222, 224 (5th Cir.

1994).   We need not determine whether Lopez exhausted his FTCA
                            No. 05-11365
                                 -3-

administrative remedies, as his FTCA claim against Dr. Partida is

unavailing on its merits.

     Under Texas law, which applies to Lopez’s FTCA claim,

Cleveland v. United States, 457 F.3d 397, 403 (5th Cir. 2006),

Dr. Shah’s alleged negligence in tearing Lopez’s stitches while

examining his eye was a “superseding cause” that “destroy[ed]

[any] causal connection between the negligent act or omission of

[Dr. Partida] and the injury complained of, and thereby [became]

the immediate cause of such injury.”   Taylor v. Carley, 158

S.W.3d 1, 9 (Tex. App. 2004).   Lopez therefore could not recover

from Dr. Partida based on the referral to Dr. Shah.   Lopez’s

complaint states no other basis for recovery based on Dr.

Partida’s alleged actions or omissions.

     The magistrate judge’s dismissal of Lopez’s action

constitutes a strike for purposes of 28 U.S.C. § 1915(g).      See

Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).     We warn

Lopez that if he accumulates three strikes, he will be barred

under § 1915(g) from proceeding in forma pauperis in a civil

action or an appeal unless he is under imminent danger of serious

physical injury.

     AFFIRMED.   SANCTION WARNING ISSUED.
