IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41454
Summary Calendar
KEVIN MICHAEL BOETTNER
Plaintiff - Appellant
v.
UNIDENTIFIED KIRKWOOD; UNIDENTIFIED ISAACKS, Ms.;
UNIDENTIFIED HURD, Mr.; UNIDENTIFIED CARMEN, Mr.;
UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:00-CV-160
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July 24, 2001
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Kevin Michael Boettner, Texas prisoner # 906170, appeals the
magistrate judge’s dismissal of his 42 U.S.C. § 1983 action as
frivolous under 28 U.S.C. § 1915A. Boettner argues that the
magistrate judge abused her discretion in dismissing his case as
frivolous. A review of Boettner’s prison dental health records
show frequent and continuous dental treatment from the time he
entered the Rufus Duncan Unit until this case was dismissed. As
the magistrate judge correctly held, Boettner’s dental records
*
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that this opinion should not be published and is not precedent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. 00-41454
-2-
documenting his frequent examinations, treatment, and medications
rebut his allegations of deliberate indifference. Banuelos v.
McFarland, 41 F.2d 232, 235 (5th Cir. 1995). His claims amount
to no more than disagreement with his treatment, which is not
sufficient to state a claim under 42 U.S.C. § 1983. Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Boettner’s appeal is without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2. All of Boettner’s outstanding motions are
DENIED.
Boettner is hereby informed that the dismissal of this
appeal as frivolous counts as a strike for purposes of 28 U.S.C.
§ 1915(g), in addition to the strike for the district court’s
dismissal. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996) (“[D]ismissals as frivolous in the district courts or the
court of appeals count [as strikes] for the purposes of
[§ 1915(g)].”). We caution Boettner that once he accumulates
three strikes, he may not proceed 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; MOTIONS DENIED.