IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10186
Conference Calendar
JOHNNY RAY VALCHAR,
Plaintiff-Appellant,
versus
WILLIAM SWART, M.D.; EMANUEL BRUCOE, M.D.;
P. MAXEY, R.N.; V. BURNES, L.V.N.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:98-CV-142
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August 24, 1999
Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.
PER CURIAM:*
Johnny Ray Valchar, Texas prisoner # 744014, filed a 42
U.S.C. § 1983 complaint against William Swart, M.D., a physician
employed at the Dalhart Unit of the Texas Department of Criminal
Justice, Institutional Division. Valchar contends that Swart was
deliberately indifferent to his serious medical needs because
Swart failed to promptly diagnose and treat his ruptured
appendix.
Valchar’s complaint alleges at most that Swart’s actions
*
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that this opinion should not be published and is not precedent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. 99-10186
-2-
constituted negligence or malpractice, not deliberate
indifference to his serious medical needs. A case of mere
negligence, neglect, or medical malpractice does not give rise to
a § 1983 cause of action. Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991).
Also named as defendants in Valchar’s § 1983 complaint were
medical personnel Emanuel Brucoe, M.D., P. Maxey, R.N., and V.
Burnes, L.V.N. Valchar does not argue in his brief on appeal
that the district court erred in dismissing his claims against
these individuals; therefore, these claims are abandoned. See
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
The district court did not err or abuse its discretion in
dismissing Valchar’s complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii). Valchar’s appeal is without
arguable merit and is therefore frivolous. See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). It is DISMISSED. See 5TH CIR.
R. 42.2.
The district court's dismissal of the present case and our
dismissal of this appeal count as two strikes against Valchar for
purposes of 28 U.S.C. § 1915(g). We caution Valchar that once he
accumulates three strikes, he may not proceed in forma 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). Valchar
should review any pending appeals to ensure that they do not
raise frivolous arguments.
APPEAL DISMISSED; SANCTION WARNING ISSUED.
Valchar v. Swart
Combined Opinion