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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-10572

(Summary Calendar)

 

STEVAN MICHAEL WRIGHT,

Plaintiff-Appellant,

versus

WAYNE SCOTT, Etc. ET AL.,

 Defendants,

WAYNE SCOTT, Executive Director TDCJ; ADMINISTRATION,

John Middleton Unit; JANIE COCKRELL, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;

NO FIRST NAME REED, Officer, Correctional Officer 3

Field Boss/High Rider at the John Middleton Unit;

NO FIRST NAME CARSON, Unit Safety Officer; NO FIRST

NAME SHAFFER, DR.; M.D. REVELLE; FNNK CURTI, DR.; NO FIRST

NAME FAGAN, DR.; NO FIRST NAME LAMBERT, Warden; NO FIRST

NAME RAINES, Assistant Warden; NO FIRST NAME LAST NAME

UNKNOWN, DR.; NO FIRST NAME WALKER, Captain; NO FIRST

NAME MCGRAVIES; NO FIRST NAME LEFEVRE; NO FIRST NAME BLACK;

NO FIRST NAME HARMON; UNIT SAFETY OFFICER,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:98-CV-249

December 21, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
*

 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.

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PER CURIAM:*

StevanMichaelWright, Texasinmate # 631244, appealsthe district court’s dismissalpursuant

to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) of his pro se, in forma pauperis

(“IFP”), 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim upon which relief

may be granted. We AFFIRM, concluding that the district court correctly dismissed Wright’s motion

as frivolous. In addition, Wright’s motion for an injunction is DENIED.

Wright contends that he was denied recommended medical treatment for a rat bite and for a

left-ear condition. Wright also asserts that prison officials required him to sharpen tools without

gloves, exposing him to the blood and body fluids of inmates who were infected with Hepatitis and

other infectious diseases. In addition, Wright avers that he was housed in a dormitory with inmates

who had infectious diseases, including Hepatitis B. Wright claims that he requested but was denied

a vaccination against Hepatitis B. As a result, he contracted the disease. In addition to his other

claims, Wright also asserts that Wayne Scott (“Scott”) and Janie Cockrell (“Cockrell”), Texas

Department of CriminalJustice directors, have been negligent in their failure to educate and protect

inmates from the spread of Hepatitis and other infectious diseases in prison. 

We conduct a de novo review of the dismissal under 28 U.S.C. § 1915A of a prisoner’s 42

U.S.C. § 1983 claims that are frivolous or fail to state a claim. Ruiz v. United States, 160 F.3d 273,

275 (5th Cir. 1998); Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998), cert. denied, 527 U.S.

1041 (1999). We review the dismissal of claims as frivolous for an abuse of discretion. Siglar v.

Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
2 Wright also alleged in the district court that he did not received adequate medical

treatment after he contracted Hepatitis C. Wright has not raised this argument on appeal and

therefore it is abandoned. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

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In order to state a valid § 1983 claim for relief for denial of adequate medical treatment, a

prisoner must allege deliberate indifference to his serious medical needs. Wilson v. Seitter, 510 U.S.

294, 303 (1991); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Deliberate indifference

to medical needs requires more than mere negligence on the part of prison officials. It requires that

prison officials be both aware ofspecific factsfrom which the inference could be drawn that a serious

medical need exists and then the prison official, perceiving that risk, must deliberately fail to act.

Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, unsuccessful medical treatment, neglect or

medical malpractice does not give rise to a § 1983 cause of action. Varnado, 920 F.2d at 321. In

addition, an inmate’s disagreement with medical treatment is insufficient to establish deliberate

indifference. Norton v. Dimanzana, 122 F.3d 286, 292 (5th Cir. 1997). Similarly, a claim that

additional diagnostic techniques or forms of treatment should have been utilized is inadequate for

purposes of a § 1983 claim. Estelle v. Gamble, 429 U.S. 97, 107 (1979). 

Wright has not established that the defendants acted withdeliberate indifference to hismedical

needs based on the treatment that he received for his left ear condition and following the rat bite.

See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (disagreement with treatment received,

unsuccessful medical treatment, and negligence or medical malpractice do not amount to deliberate

indifference and do not give rise to a 42 U.S.C. § 1983 claim). Wright also has not demonstrated

deliberate indifference in conjunction with his claims that the defendants refused to give him a

Hepatitis B vaccination, did not educate him concerning the risks of exposure to infectious diseases,

and did not prevent himfromcontracting Hepatitis B and Hepatitis C in prison.2 Farmer v. Brennan,
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511 U.S. 825, 847 (1994); Wilson v. Seiter, 501 U.S. 294, 297 (1991). In addition, Wright has failed

to establish that defendants Scott and Cockrell acted with deliberate indifference. Farmer, 511 U.S.

at 847; Wilson, 501 U.S. at 297; Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986) (The

failure of prison officialsto follow established regulations does not give rise to a constitutional claim

under 42 U.S.C. § 1983.).

Wright’s appeal is without arguable merit and is 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 Wright’s 42 U.S.C. § 1983 complaint as frivolous and for

failure to state a claim and the dismissal of the instant appeal as frivolous count as two strikes for

purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-88 (5thCir. 1996).

Wright accumulated one previous strike in Wright v. Dean, No. 96-CV-725 (N.D. Tex. May 8,

1995). See Adepegba, 103 F.3d at 388 (dismissal as frivolous by district court counts as strike once

prisoner has exhausted or waived his appeal). Accordingly, Wright has accumulated three strikes and

is subject to the 28 U.S.C. § 1915(g) bar. Wright may not 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. 

For the foregoing reasons, Wright’s appeal is DISMISSED. Wright’s motion for an

injunction is also DENIED. In addition, we impose sanctions pursuant to 28 U.S.C. § 1915(g).