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

                                                                  FILED
                                                                 March 7, 2008
                               No. 07-10020
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk
EMILIO CHAVEZ, JR.

                                           Plaintiff-Appellant

v.

UNIVERSITY MEDICAL CENTER; LUBBOCK COUNTY; LUBBOCK
COUNTY DETENTION CENTER; CITY OF LUBBOCK; CINDY G. HILL;
JOHN DOE, Contract Doctor to Lubbock County Jail; DOUGLAS DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; DAVID GUTIERREZ, Sheriff
Lubbock County; R VOGELESAN, Warden, Dalhart Unit

                                           Defendant-Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 5:06-CV-157


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Emilio Chavez, Jr., Texas prisoner # 1369270, is appealing the magistrate
judge’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous. Chavez argues
that his criminal conviction was the result of the denial of due process and the




      *
      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should not be published and is not precedent except under the limited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. 07-10020

ineffective assistance of counsel and that he is entitled to damages for the loss
of liberty and property.
      Chavez acknowledged during the Spears1 hearing that his conviction has
not been set aside or otherwise invalidated. Because Chavez’s conviction has not
been declared invalid by a state tribunal, called into question by a federal habeas
court, or otherwise invalidated, Chavez cannot seek damages pursuant to § 1983.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Thus, the magistrate judge did
not abuse its discretion in dismissing this claim as frivolous.
      Chavez argues that the Lubbock County officials and medical personnel
acted with deliberate indifference to his medical needs by failing to provide him
with chemotherapy treatments, denying him pain medications, and delaying his
treatment when he suffered a heart attack.
      Chavez’s authenticated medical records rebut his assertions that the
defendants acted with deliberate indifference to his medical condition. The
records reflect that he was examined by doctors on several occasions and was
prescribed and dispensed numerous medications while he was incarcerated in
the Lubbock Jail. The records do not support his assertion that he was denied
prescribed chemotherapy or that he suffered any objective symptoms or pain as
a result of lung cancer. Nor do the records reflect that there was a delay in
medical treatment that resulted in substantial harm to Chavez. Chavez has not
shown that the magistrate judge abused her discretion in dismissing his
complaint as frivolous.     Farmer v. Brennan, 511 U.S. 825, 839-41 (1994);
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
      Because Chavez has not raised an issue of arguable merit, the appeal is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5TH CIR. R. 42.2. The district court’s dismissal of Chavez’s action as
frivolous and the dismissal of this appeal as frivolous each count as a strike for


      1
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

                                         2
                                  No. 07-10020

purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). We caution Chavez that if he accumulates three strikes under
28 U.S.C. § 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.
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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