No. 99-20589 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20589 Conference Calendar

THOMAS W. SHAW,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; DR. MASTERS; MR. HEARD,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-98-CV-534 -------------------- February 16, 2000

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

PER CURIAM:*

Thomas W. Shaw, Texas prisoner # 185266, appeals the

district court’s dismissal of his

civil rights

action as frivolous pursuant to

(e)(2)(B)(i). He

argues that the district court abused its discretion in summarily

dismissing his § 1983 action. Because Shaw has not shown that

any of the prison conditions complained of posed a risk of

serious harm and that the defendants were aware of that risk but

failed to take reasonable measures to abate it, he has not shown

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20589 -2-

that the district court abused its discretion in dismissing his

claims concerning the conditions of his confinement as frivolous

pursuant to

(e)(2)(B)(i). See Farmer v. Brennan,

(1994).

Shaw argues that he was denied adequate medical care because

he has been required to go to a pill window to get his heart

medication and he has not been given nasal spray for nasal

polyps. Shaw has not been denied heart medication and his

disagreement with his medical treatment for his nasal polyps is

not actionable under § 1983. See Reeves v. Collins,

(5th Cir. 1994); Varnado v. Lynaugh,

(5th Cir. 1991). He has not shown the district court abused its

discretion in denying this claim as frivolous under

§ 1915(e)(2)(B)(i).

Shaw argues that he was denied access to the courts because

he is not allowed to use the law library for at least ten hours

per week. Because Shaw has not alleged that his position as a

litigant in a particular case was prejudiced, he has not shown

that the district court abused its discretion in dismissing this

claim as frivolous under § 1915(e)(2)(B)(i). See Walker v.

Navarro County Jail,

(5th Cir. 1993).

The district court’s dismissal of Shaw’s § 1983 action

counts as a “strike” under

(g), and this court’s

dismissal of his appeal as frivolous also counts as a “strike”

under § 1915(g). See Adepegba v. Hammons,

(5th Cir. 1996). Shaw has accumulated two “strikes” and if he

accumulates a third “strike,” he will not be able to proceed IFP No. 99-20589 -3-

in any civil action or appeal unless he is under imminent danger

of serious physical injury. See § 1915(g).

APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.