                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                           *CORRECTED*
                                                              June 13, 2007
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                           No. 05-50947
                         Summary Calendar


DONALD M. JOHNSON,

                                    Plaintiff-Appellant,

versus

SHERI TALLEY, Doctor,

                                    Defendant-Appellee.

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                       USDC No. 4:03-CV-119
                       --------------------

Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*

     Donald M. Johnson, Texas prisoner # 638554, has filed an

application for leave to proceed in forma pauperis (IFP) on

appeal following the district court’s dismissal of his 42 U.S.C.

§ 1983 civil rights complaint against Texas Department of

Criminal Justice (TDCJ) physician Sheri Talley.   Johnson alleged

that Talley acted with deliberate indifference to his medical

needs while he was at the Lynaugh Unit because Talley provided



     *
      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this opinion should not be published and is not precedent except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. 05-50947
                                     -2-

him with the wrong type of knee brace to treat his

osteoarthritis; took the knee brace away from him; allowed

security to place him on the second floor in spite of orders from

specialists that he be placed on the first floor; and treated his

shoulder pain improperly.    Johnson also contended that Talley’s

actions toward him were motivated by her bias against African

Americans and Muslims.   Johnson sought as relief monetary damages

and a temporary restraining order.

     The district court denied Johnson leave to proceed IFP on

appeal, certifying that the appeal was not taken in good faith.

By moving for IFP, Johnson is challenging the district court’s

certification.   See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

1997); FED. R. APP. P. 24(a).

     Johnson argues that Talley acted with deliberate

indifference to his medical needs when she failed to provide him

with a knee brace, cane, or walking stick for most of his stay at

the Lynaugh Unit.   This argument alleges, at most, a difference

in opinion or a malpractice claim concerning Johnson’s medical

treatment and thus does not establish an Eighth Amendment

violation.   See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.

1991).

     Johnson also contends that Talley was deliberately

indifferent to his medical needs when she placed him on the

second floor and in the hoe squad, both of which violated his

medical restrictions.    As the district court determined, Johnson
                              No. 05-50947
                                   -3-

has not shown that he was injured by his placement on the second

floor or in the hoe squad, and he concedes that he is no longer

housed in the Lynaugh Unit.    Accordingly, he may not recover on

this claim under § 1983.     See Farrar v. Hobby, 506 U.S. 103, 112

(1992).   Although Johnson does argue in his IFP motion that

climbing stairs and working in the hoe squad led to a torn

meniscus, we will not consider this argument because it is being

raised for the first time on appeal.         See Leverette v. Louisville

Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).        Furthermore, the

issue is fact-based, and Johnson has not shown plain error.         See

Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th

Cir. 1996)(en banc).

     Johnson also argues for the first time in his IFP motion

that (1) Talley placed him on the second floor in retaliation for

his filing complaints and grievances against her; and (2) Talley

acted with deliberate indifference to his medical needs when she

refused to authorize a surgery on his knee.        Because these

arguments are being raised for the first time on appeal, we do

not consider them.     See Leverette, 183 F.3d at 342.

     Johnson’s motion fails to show error in the district court’s

certification decision and fails to show that Johnson will raise

a nonfrivolous issue on appeal.     See Howard v. King, 707 F.2d

215, 220 (5th Cir. 1983).     Accordingly, Johnson’s motion to

proceed IFP on appeal is denied, and his appeal is dismissed as

frivolous.   See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
                           No. 05-50947
                                -4-

     Our dismissal of the instant appeal and the district court’s

dismissal of Johnson’s complaint for failure to state a claim

each count as strikes for purposes of 28 U.S.C. § 1915(g).

See Johnson v. Talley, No. P-03-CV-119 (W.D. Tex. Feb. 22, 2005);

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

court’s dismissal of a prior § 1983 appeal by Johnson as

frivolous counts as a third strike.    See Johnson v. Smith, No.

05-50801 (5th Cir. April 2, 2007).    Because Johnson has

accumulated at least three strikes under § 1915(g), he is barred

from proceeding IFP in any civil action or appeal while he is

incarcerated or detained in any facility unless he is under

imminent danger of serious physical injury.    § 1915(g).

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

IMPOSED.
