IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40747
Conference Calendar
ODELL BURGESS, SR.,
Plaintiff-Appellant,
versus
RONALD DAVIS, DR.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-00-CV-118
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February 19, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Odell Burgess, Sr., Texas prisoner # 579316, appeals the
28 U.S.C. § 1915(e)(2)(B) dismissal as frivolous of his 42 U.S.C.
§ 1983 lawsuit alleging an Eighth Amendment violation. Burgess
complained that a prison physician, Dr. Davis, was deliberately
indifferent to his medical needs by providing inadequate medical
care and, specifically, by failing to examine him personally for
more than 48 hours after he suffered an injury.
*
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that this opinion should not be published and is not precedent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. 02-40747
-2-
The essence of Burgess’ complaint is not that he was denied
medical care but that he could have received better care. His
disagreement with the treatment he received does not state a
cause of action under § 1983. See Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991). At most, his complaint is one of
negligence or medical malpractice, which does not rise to the
level of a constitutional violation. Id. Moreover, because
Burgess has not specified any substantial injury he suffered
which is attributable to the delay in physical examination,
his claim fails. See Mendoza v. Lynaugh, 989 F.2d 191, 195
(5th Cir. 1993).
Burgess now alleges, for the first time, that his step 2
grievance has resulted in disciplinary action against Dr. Davis,
which he asserts buttresses his claim of deliberate indifference.
Although he presented his step 2 grievance to the district court,
he made no argument concerning his success at the administrative
level. This court will therefore not consider the argument. See
Shanks v. AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir.
1999); Burch v. Coca-Cola Co., 119 F.3d 305, 319 (5th Cir. 1997).
Furthermore, whether Dr. Davis failed to comply with prison
procedures when treating Burgess does not mean that his treatment
rose to the level of a constitutional violation.
The district court’s judgment is AFFIRMED.
Burgess v. Davis
Combined Opinion