* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 24, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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 deliber ately indifferent to his serious medical

needs and denied him medical treatment on the basis of his race.2

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 hear ing 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 discreti on; he does not describe additional facts to

salvage his otherwise d eficient complaint that would have been

revealed either through a Spears hearing or b y a questionnaire.

See id.

Dismissal of an IFP complaint as frivolous un der §

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 cla im under § 1915(e)(2)(b)(ii), d e 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 Bo canegra’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. S ee Varnado v. Lynaugh

, 920 F.2d 320, 321 (5th Cir.3

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. S ee

McCleskey v. Kemp

, 481 U.S. 27 9, 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. M uhammad 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

. S ee 5 TH C IR

. R. 42.2.

Bocanegra’s motion for prelim inary injunction is D ENIED

. 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. S ee 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 any4

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