United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40594
Conference Calendar
JOHN WEBB,
Plaintiff-Appellant,
versus
LARRY SETTLES; VERNETTE PORTER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:04-CV-21-JKG
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
John Webb, Texas prisoner # 415339, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous.
He argues that the allegations contained in his complaint and the
evidence adduced at the Spears** hearing were sufficient to
establish a claim against Larry Settles for deliberate
indifference to medical needs. Webb does not challenge the
dismissal of his claims against Vernette Porter and has thus
*
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this opinion should not be published and is not precedent except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.
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 04-40594
-2-
abandoned any challenge related to the dismissal of those claims.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Webb contends that Settles was not aggressive enough in
treating his ankle injury. His disagreement with Settles’s
treatment of his injury is insufficient to state a constitutional
claim. See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.
1997).
Webb’s appeal is without arguable merit and is therefore
DISMISSED as frivolous. See 5TH CIR. R. 42.2; Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). The district court’s
dismissal of his complaint as frivolous and the dismissal of this
appeal each count as a “strike” for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996). If Webb accumulates three “strikes” under 28 U.S.C.
§ 1915(g), he will not be able to 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).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.