Case: 10-40985     Document: 00511620065         Page: 1     Date Filed: 10/03/2011




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

                                                                            FILED
                                                                          October 3, 2011
                                     No. 10-40985
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ARTHUR LOWE,

                                                  Plaintiff-Appellant

v.

NANCY DAVENPORT; ROBERT CRISS,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:10-CV-176


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Arthur Lowe, Texas prisoner # 669750, appeals the
magistrate judge’s dismissal of his 42 U.S.C. § 1983 action pursuant to 28 U.S.C.
§ 1915A(b) as frivolous and for failure to state a claim on which relief may be
granted. We review the dismissal of Lowe’s claims de novo. See Velasquez v.
Woods, 

, 421 (5th Cir. 2003). A claim may be dismissed as frivolous
if it does not have an arguable basis in fact or law. Gonzales v. Wyatt, 

, 1019 (5th Cir. 1998). A claim may be dismissed for failure to state a claim

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-40985

on which relief may be granted if, assuming all well pleaded facts are true, the
plaintiff has not stated “enough facts to state a claim to relief that is plausible
on its face.” In re Katrina Canal Breaches Litig., 

, 205 (5th Cir.
2007) (internal quotation marks and citation excluded).
      Lowe asserts that Nancy Davenport, a clinical nurse specialist at the
Michael Unit (Michael) of the Texas Department of Criminal Justice,
Correctional Institutions Division, was deliberately indifferent to his serious
medical needs because she prescribed Zoloft, Desipramine, and Celexa for him
knowing that these drugs would cause him deleterious side effects.                 He
maintains that Davenport instructed him to keep taking Zoloft even though he
was suffering such side effects from it and put him back on Celexa after taking
him off Celexa because it had caused him to get sick. He contends that he was
treated by Davenport and Robert Criss, a licensed professional counselor who
was the mental health practice manager at Michael, only after repeated
complaints and referrals, and that their delay in treating him caused him to
become disfigured as a side effect of one of the drugs. Lowe insists that the
failure of Davenport and Criss to correctly treat him constitutes wanton
disregard for his serious medical needs.
      According to Lowe’s allegations, Davenport saw him repeatedly and
changed the dosage or type of his medication when he complained of side effects.
Although Lowe alleged that Davenport took him off all anti-depressants, he
acknowledged that this was because he had side effects from all of the available
formulary anti-depressants. Regarding Criss, Lowe alleged only that Criss told
him that Davenport was responsible for prescribing his medications. Lowe has
not alleged that Criss had any authority to prescribe medications or to direct
Davenport to prescribe medications. Lowe has not alleged any facts showing
that the defendants knew that he had a serious medical need and refused to
treat that need. At most, Lowe has alleged that he disagrees with the medical
treatment he received and that the medical treatment he received was

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                                   No. 10-40985

ineffective. This is insufficient to state a viable claim for deliberate indifference
to serious medical needs. See Domino v. Texas Dep’t of Criminal Justice, 

, 756 (5th Cir. 2001).
      Lowe’s appeal is without arguable merit and is frivolous. See Howard v.
King, 

, 220 (5th Cir. 1983). Because the appeal is frivolous, it is
dismissed. See 5TH CIR. R. 42.2.
      The dismissal of this appeal as frivolous counts as a strike under 28 U.S.C.
§ 1915(g), as does the district court’s dismissal of the complaint. See Adepegba
v. Hammons, 

, 387-88 (5th Cir. 1996).            Lowe has previously
accumulated two strikes. See Lowe v. Richardson, No. 10-40954, 

, at *1 (5th Cir. Apr. 22, 2011) (unpublished).          As Lowe has now
accumulated three or more strikes, he is barred from proceeding in forma
pauperis pursuant to § 1915 while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury. See § 1915(g).
      APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.




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