Garcia v. Sanders

No. 99-10061
                                  -1-

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                              No. 99-10061
                          Conference Calendar

JESSE HERNANDEZ GARCIA,

                                            Plaintiff-Appellant,

versus

DARWIN D. SANDERS; TIMOTHY REVELL, DR.; K. RATHARAJAH, DR.;
PATRICIA W. GUERRERO; CHARLES RIDGE, DR.; ARNOLD KAMAN, DR.;
DR. RANAGHAN,

                                            Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 2:96-CV-0099
                       --------------------
                         February 16, 2000

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jesse Hernandez Garcia, Texas prisoner #686481, appeals from

the dismissal of his civil rights action as frivolous and for

failure to state a claim.    Garcia contends that the magistrate

judge should have appointed a certified interpreter to assist him

at his hearing pursuant to Spears v. McCotter,
766 F.2d 179
(1985); that he did not waive his right to a certified

interpreter; that the use of a prison-system interpreter gave

rise to an impermissible conflict of interest; that 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that this opinion should not be published and is not precedent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. 99-10061
                                  -2-

magistrate judge was not authorized to preside over his Spears

hearing or conduct pretrial proceedings; and that the magistrate

judge should have allowed him to show his injuries at the Spears

hearing.

     Garcia did not raise any issues regarding the interpreter or

the magistrate judge’s authority in the district court.      His

contentions therefore are reviewed for plain error.     Douglass v.

United Servs. Auto. Ass’n,
79 F.3d 1415, 1428
(5th Cir. 1996)(en

banc).

     Garcia has not demonstrated plain error regarding the

interpreter at the Spears hearing.    Based on the magistrate

judge’s finding that attempts had been made to determine the

source of Garcia’s pain, there was no deliberate indifference to

his serious medical needs.    Varnado v. Lynaugh,
920 F.2d 320, 321
(5th Cir. 1991).

     The magistrate judge was authorized to preside over the

Spears hearing.
28 U.S.C. § 636
(b)(1)(B).   Garcia has failed to

show error, plain or otherwise, regarding the magistrate judge’s

authority.

     Garcia has not shown an abuse of discretion regarding the

denial of his apparent request to show his injuries.     United

States v. Ruiz,
987 F.2d 243, 246
(5th Cir. 1993).     The

magistrate judge did not question that Garcia was hurt and did

not question the existence of any particular injuries.

     Garcia’s appeal is without arguable merit and is frivolous.

Howard v. King,
707 F.2d 215, 219-20
(5th Cir. 1983).     The

district court’s dismissal of Garcia’s complaint and this court’s
                          No. 99-10061
                               -3-

dismissal of the appeal as frivolous count as two “strikes” for

purposes of
28 U.S.C. § 1915
(g).    See Adepegba v. Hammons,
103

F.3d 383, 385-87
(5th Cir. 1996).   Garcia is CAUTIONED that if he

accumulates three “strikes” under § 1915(g), he will not be able

to proceed in forma pauperis (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

§ 1915(g).

     APPEAL DISMISSED; SANCTIONS WARNING ISSUED.