IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10345
Conference Calendar
ANTHONY D. WILKES,
Plaintiff-Appellant,
versus
RICHARD HULTS, Doctor;
GAIL ANDERSON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:01-CV-155
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Anthony D. Wilkes, Texas state prisoner # 799333, argues
that the magistrate judge erred in dismissing as frivolous his 42
U.S.C. § 1983 complaint alleging that the defendants acted with
deliberate indifference to his serious medical needs. The
district court must dismiss a prisoner’s in forma pauperis (IFP)
civil rights complaint if the action is frivolous. Black v.
Warren, 134 F.3d 732, 733 (5th Cir. 1998); see 28 U.S.C.
*
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that this opinion should not be published and is not precedent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. 02-10345
-2-
§ 1915(e)(2)(B)(i); 28 U.S.C. § 1915A(b)(1).
Wilkes’ responses to the questionnaire regarding the factual
basis for his claim reflect that he received continual medical
examinations and treatment for his ear infection. His
allegations that he disagreed with the prescribed medical
treatment because it did not cure his ear infection raised a
medical malpractice claim at best. Such allegations do not
reflect deliberate indifference and, thus, do not rise to the
level of a constitutional violation. See Estelle v. Gamble, 429
U.S. 97, 104 (1976); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991).
The magistrate judge did not abuse her discretion in
dismissing Wilkes’ complaint as frivolous. Because Wilkes’
appeal is without arguable merit, it is DISMISSED as frivolous.
See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983). The dismissal of the instant appeal as frivolous and
the district court’s dismissal of Wilkes’ 42 U.S.C. § 1983
complaint as frivolous each count as a strike for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). Wilkes is warned that if 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; SANCTION WARNING GIVEN.