United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 18, 2006
Charles R. Fulbruge III
Clerk
No. 04-41644
Summary Calendar
JOE A. FLORES,
Plaintiff-Appellant,
versus
CECILIA OKOYE, P.A. in her individual and official capacity;
ROBERT VICTORIA, M.D., in his individual and official capacity;
LUCY MARTINEZ, R.N., in her individual and official capacity;
EUGENE TROTTER, P.A., in his individual and official capacity;
MAXIMILIANO HERRERA, M.D., in his individual and official
capacity; AHLA SHABAAZ, R.N.P., M.S.N., M.P.H., in his
individual and official capacity; ROCHELLE MCKINNEY, R.N., M.A.,
in her individual and official capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:04-CV-29
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Joe A. Flores, Texas inmate # 855743, appeals the dismissal
of his in forma pauperis complaint as frivolous pursuant to
28 U.S.C. § 1915(e)(2). In his complaint, Flores claimed that
defendants Cecelia Okoye, Dr. Robert Victoria, Lucy Martinez,
Eugene Trotter, Dr. Maximiliano Herrera, Ahla Shabazz, and
*
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this opinion should not be published and is not precedent except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. 04-41644
-2-
Rochelle McKinney were deliberately indifferent to his serious
medical needs.
Flores maintains that the defendants have refused to treat
him for Hepatitis C even though a physician at a hospital in
Galveston, Texas, has recommended such treatment. He contends
that the refusal to treat him for Hepatitis C, which is based on
an analysis of his enzyme level, constitutes deliberate
indifference.
A doctor’s failure to follow the advice of another doctor
suggests nothing more than a difference in opinion as to the
appropriate method of treatment under the circumstances, and is
not evidence of deliberate indifference. See Stewart v. Murphy,
174 F.3d 530, 535 (5th Cir. 1999). Flores has not shown that
the district court abused its discretion in dismissing his action
as frivolous. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999). To the extent that Flores pleaded other grounds for his
deliberate indifference claims, he has abandoned the claims by
failing to brief them on appeal. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993)
Flores also contends that his case should be remanded to the
district court so that he can add new factual allegations.
Flores wishes to allege that the defendants are violating the
policy of the Texas Department of Corrections by confining him in
administrative segregation and that the defendants have, at
times, failed to keep in stock medication prescribed by a
No. 04-41644
-3-
rheumatologist and have on other occasions cancelled his
medications or reduced his dosage. Because no viable
constitutional claim can be perceived with regard to the
underlying facts, the district court’s error, if any, in failing
to give Flores notice and an opportunity to amend his complaint
was harmless. See Jones v. Greninger, 188 F.3d 322, 327 (5th
Cir. 1999); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.
1998).
The district court’s dismissal of Flores’s action as
frivolous counts as a strike under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Flores
is hereby cautioned that if he accumulates three strikes, he will
not be allowed to proceed IFP 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 § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.