United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS June 24, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-11129
Summary Calendar
RAMIRO GUERRA BOCANEGRA, SR.,
Plaintiff-Appellant,
versus
TIM REVELL, DR.; PATRICE MAXEY; DAVID R. BASSE, DR.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(2:04-CV-114)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Ramiro Guerra Bocanegra, Sr., Texas prisoner #831945, appeals,
pro se, the dismissal (as frivolous and for failure to state a
claim) of his in forma pauperis (IFP) claims brought pursuant to 42
U.S.C. § 1983 against Dr. Tim Revell, Medical Department
Administrator Patrice Maxey, and Dr. David R. Basse. He claimed
defendants were deliberately indifferent to his serious medical
needs and denied him medical treatment on the basis of his race.
*
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this opinion should not be published and is not precedent except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.
Bocanegra first complains the district court erred in failing,
prior to dismissal, to conduct a Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985), hearing or to use a questionnaire. We review the
denial of a Spears hearing for abuse of discretion, considering
whether the complaint’s allegations would pass muster with
additional factual development. E.g., Eason v. Thaler, 14 F.3d 8,
10 (5th Cir. 1994). Bocanegra has not shown the district court
abused its discretion; he does not describe additional facts to
salvage his otherwise deficient complaint that would have been
revealed either through a Spears hearing or by a questionnaire.
See id.
Dismissal of an IFP complaint as frivolous under §
1915(e)(2)(B)(I) is reviewed for abuse of discretion, e.g., Siglar
v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); dismissal for
failure to state a claim under § 1915(e)(2)(b)(ii), de novo.
Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). Review of
the record and Bocanegra’s brief on appeal reveals the district
court did not abuse its discretion in dismissing Bocanegra’s
complaint as frivolous or err in dismissing it for failure to state
a claim. See id.; Eason, 14 F.3d at 10. Bocanegra’s allegations
of denial of medical treatment or proper testing amount to a
disagreement with the course of his treatment, which is
insufficient to support relief for a claim brought pursuant to 42
U.S.C. § 1983. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
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1991). At most, Bocanegra’s allegations that he should have been
administered a particular test or treatment amount to assertions of
medical malpractice or negligence, rather than an Eighth Amendment
denial of medical care. See id.
Bocanegra fails to allege any act evidencing discriminatory
intent on the part of the named defendants to support his assertion
that he was denied medical treatment on the basis of his race. See
McCleskey v. Kemp, 481 U.S. 279, 292 (1987). Bocanegra’s
allegation that two white inmates received tests/treatment that
Bocanegra believed he should have received is also insufficient to
support a claim of racial animus because Bocanegra failed to allege
any facts showing the two white inmates were, in all other
respects, similarly situated to him. Muhammad v. Lynaugh, 966 F.2d
901, 903 (5th Cir. 1992).
Bocanegra’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.
Bocanegra’s motion for preliminary injunction is DENIED. The
dismissal of this appeal as frivolous counts as a strike for
purposes of 28 U.S.C. § 1915(g), as does the district court’s
dismissal. See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.
1996). We warn Bocanegra: if he accumulates three strikes under 28
U.S.C. § 1915(g), he will not be able to proceed IFP in any civil
action or appeal filed while he is incarcerated or detained in any
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facility, unless he is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; MOTION FOR PRELIMINARY INJUNCTION DENIED;
STRIKE WARNING ISSUED
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