United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 23, 2004
Charles R. Fulbruge III
Clerk
No. 04-30343
Summary Calendar
CLARENCE SAMUELS,
Plaintiff-Appellant,
versus
LONNIE HAY; MICHAEL RHODES; JUDD MOORE; RICHARD ROBINSON;
RICHARD L. STALDER; MEDICAL DEPARTMENT,
WADE CORRECTIONAL CENTER,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:02-CV-2490
Before HIGGINBOTHAM, JONES and PRADO, Circuit Judges.
PER CURIAM:*
Clarence Samuels, Louisiana prisoner # 133005, appeals
the dismissal of his 42 U.S.C. § 1983 complaint as frivolous
pursuant to 28 U.S.C. § 1915(e). We dismiss the appeal as
frivolous.
Samuels’s allegations do not support a determination that
the defendants acted with deliberate indifference to his serious
*
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opinion should not be published and is not precedent except under the limited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.
medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
His alleged complaints of pain and bleeding immediately following
the extraction of his impacted wisdom tooth are insufficient to
support a determination that Lonnie Hay knew that Samuels faced an
excessive risk to health or safety if he was not seen by the oral
surgeon. See id. Nevertheless, the record supports a determina-
tion that Hay was not indifferent to Samuels’s complaints insofar
as Hay returned Samuels to the oral surgeon for a pain shot.
Samuels’s allegation that he failed to receive the same pain
medications and antibiotic originally prescribed him by his oral
surgeon amounts only to a disagreement over the type of medical
treatment afforded and, as such, is not a cognizable 42 U.S.C.
§ 1983 claim. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991).
Finally, Samuels has not challenged the district court’s
determination that his allegation that the defendants attempted to
persuade him to withdraw his grievance did not implicate the
deprivation of a liberty interest and was therefore not a basis for
42 U.S.C. § 1983 recovery. He has therefore waived review of that
issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Samuels’s appeal is without arguable merit and is
dismissed. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). Samuels is 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
2
court’s dismissal. See Adepegba v. Hammons, 103 F.3d 383, 388
(5th Cir. 1996). We warn Samuels 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). Samuels should review any pend-
ing appeals and withdraw any that are frivolous.
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.
3