                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 13, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-10542
                           Summary Calendar


CLAUDIO ANTONIO DAVALOS,

                                     Plaintiff-Appellant,

versus

FNU WHEELER, FNU WHIDDEN, Captain; FNU SMITH, Sergeant;
N. BRUNSON, R.N.; G. ANDERSON, R.N.,

                                     Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 1:02-CV-219
                      --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Claudio Antonio Davalos, Texas prisoner # 1082702,

proceeding pro se and in forma pauperis (IFP), appeals the

magistrate judge’s dismissal of his 42 U.S.C. § 1983 civil rights

action against Texas Department of Criminal Justice –

Institutional Division (TDCJ-ID) officers Wheeler, Whidden, and

Smith and Nurses Brunson and Anderson as frivolous.

     Davalos’s appellate brief is disjointed and confusing.

However, liberally construed, it contends that the officers and


     *
       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this opinion should not be published and is not precedent except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.   04-10542
                                 -2-

nurses acted with deliberate indifference to his medical needs

when they gave him a work assignment that was contrary to prior

work classifications stating that he should not work in direct

sunlight.   Liberally construed, Davalos’s brief also contends

that the officers and nurses acted with deliberate indifference

to his medical needs when they did not allow him to wear his

clip-on sunglasses indoors.   Because Davalos conceded in his

complaint and at the Spears hearing that Captain Whidden, Warden

Wheeler, and Sergeant Smith acted in accordance with the

recommendations of Nurse Brunson and Nurse Anderson when they

refused to allow him to wear his sunglasses indoors and when they

ordered him to work outdoors with sunglasses, there is no

indication that the officers knew that Davalos faced any risk of

serious harm.   See Farmer v. Brennan, 511 U.S. 825, 847 (1994).

Furthermore, because Nurse Brunson’s and Nurse Anderson’s

decisions did not conflict with Davalos’s eye doctor’s

evaluation, their medical decisions would amount to negligence at

the most and are insufficient to establish an unconstitutional

denial of medical care.   See Varnado v. Lynaugh, 920 F.2d 320,

321 (5th Cir. 1991).

     To the extent that Davalos is claiming that prison officers

and medial staff conspired or retaliated against him for filing

grievances, his conclusory assertions are not sufficient to

establish such a claim.   See Woods v. Smith, 60 F.3d 1161, 1166
                            No.   04-10542
                                  -3-

(5th Cir. 1995); Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th

Cir. 1987).

     Davalos’s appeal is without arguable merit and is thus

frivolous.    See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983).   Accordingly, we dismiss his appeal as frivolous.   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).    Davalos is warned that if he

accumulates three strikes under 28 U.S.C. § 1915(g), he will not

be able to proceed IFP 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 28 U.S.C.

§ 1915(g).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
