Michael Todd RAMSEY, Plaintiff-Appellant, v. LVN FNU SPOORES; Dr. Adel Nafrawi; Senior Warden FNU Duke, Warden, Defendants-Appellees, 185 F. App'x 329

PER CURIAM: Michael Ramsey, a Texas prisoner, appeals the magistrate judge’s sua sponte order dismissing his pro se 42 U.S.C. § 1988 civil rights action as frivolous pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(I), following a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). Ramsey alleged that defendants were deliberately indifferent to his serious medical needs when defendant nurse Spoores caused an injury to his ear while cleaning it on April 3, 2003, and the other defendants failed to treat him.

Following the Spears hearing, at which Ramsey was questioned about his allegations and about his prison medical records, the magistrate judge determined that Ramsey was alleging only negligence. Ramsey argues that the magistrate judge abused his discretion in dismissing his complaint as frivolous, in failing to grant him an opportunity to amend his complaint, and by using his medical records to counter his allegations.

Although Ramsey has suggested that Spoores intentionally damaged his ear by using the “wrong” syringe attachment, the magistrate judge did not abuse his discretion in concluding that these allegations suggested only a non-cognizable claim of negligent treatment. See Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir.2001); Farmer v. Brennan, 511 U.S. 825, 839-40, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991).

The magistrate judge did not err in using Ramsey’s medical records to elicit his admissions that a nurse Hodges had given him medications and that Ramsey had been repeatedly treated by defendant Dr. Nafrawi. See Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir.1995); Wilson v. Barrientos, 926 F.2d 480, 481 & n. 3 (5th Cir.1991). Finally, that Ramsey may have written two letters about his medical treatment to defendant Warden Duke was insufficient to establish the causal connection necessary to show that Duke was personally liable. See Evett v. DETNTFF, 330 F.3d 681, 689 (5th Cir.2003).

For the reasons discussed above, we affirm. The affirmance of the dismissal of Ramsey’s complaint as frivolous counts as a “strike” for purposes of the three-strikes provision, 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). Ramsey is cautioned that if he accumulates three strikes, he will not be permitted to proceed informa pauperis 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). AFFIRMED; SANCTION WARNING ISSUED. 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.