United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-31248
Conference Calendar
DEANGELO WILLIAMS,
Plaintiff-Appellant,
versus
JERRY THOMAS, Doctor, General Physician at Washington
Correctional Institute; KATHY MCGINNIS, Warden of
Medical Treatment; LOUISIANA DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CV-1253
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Deangelo Williams, Louisiana prisoner # 416929, appeals from
the dismissal of his 42 U.S.C. § 1983 suit, in which he alleged
that he received constitutionally inadequate medical care. He
argues that the district court erroneously dismissed his claims
against Dr. Jerry Thomas and Warden Kathleen McGinnis in their
official capacities without prejudice pursuant to FED. R. CIV. P.
12(b)(1) and, additionally, that the district court erroneously
*
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this opinion should not be published and is not precedent except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. 04-31248
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dismissed his monetary damages and injunctive claims against them
in their individual capacities as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
Given that Dr. Thomas and Warden McGinnis are agents of the
Louisiana Department of Public Safety and Corrections, Williams’s
monetary damages claim against them in their official capacities
was properly dismissed under the Eleventh Amendment. Hafer v.
Melo, 502 U.S. 21, 26 (1991); Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989).
Williams’s complaint and his Spears** hearing testimony both
evidence that his Eighth Amendment claim was based solely on a
disagreement over the type and quality of medical treatment he
has received. However, unsuccessful medical treatment, acts of
negligence or medical malpractice, or a prisoner’s disagreement
with prison officials regarding medical treatment are
insufficient to establish an unconstitutional denial of medical
care. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); see
Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).
Therefore, the district court did not abuse its discretion in
dismissing Williams’s individual-capacity claims as frivolous.
See Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).
The district court’s 28 U.S.C. § 1915(e)(2)(B) dismissal
counts as a strike. See Adepegba v. Hammons, 103 F.3d 383,
385-87 (5th Cir. 1996). Williams is cautioned that if he
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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accumulates three strikes, 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).
AFFIRMED; SANCTIONS WARNING ISSUED.