* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10434

Summary Calendar

HENRY MARTINEZ

Plaintiff-Appellant

v.

DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; L MASSEY, Warden;

M MITTON, Major; MARTY J ARREZOLA, Lieutenant; R SEITER, Safety

Officer

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:04-CV-306

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Henry Martinez,Texas prisoner # 1108828, proceeding pro se and in forma

pauperis, appeals the district court’s dismissal as frivolous of his 42 U.S.C.

§ 1983 complaint. After conducting a hearing pursuant to Spears v. McCotter,

766 F.2d 179 (5th Cir. 1985), the district court concluded that Martinez’s claims

should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), 28 U.S.C. § 1915A,

United States Court of Appeals

Fifth Circuit

F I L E D

January 25, 2008

Charles R. Fulbruge III

Clerk
No. 07-10434

2

and 42 U.S.C. § 1997e(c). Martinez argues that the district court erred by

dismissing his claim that prison officials were deliberately indifferent to his

medical needs. He contends that his ongoing medical problems result from a

February 13, 2004, incident where he slipped and fell and injured himself after

being ordered to walk on an ice-covered sidewalk.

The district court analyzed Martinez’s allegations and issued a detailed

opinion explaining why Martinez’s complaint was subject to dismissal.

Martinez’s argument before this court focuses solely on his claim that prison

officials were deliberately indifferentto his medical condition that resulted from

the slip and fall accident. He therefore has abandoned all other allegations that

were rejected by the district court. See Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993); Brinkman v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987).

Martinez’s allegations in the district court and his argument in this court

indicate that after the fall Martinez received ongoing medical care. Thus,

Martinez’s argumentthat he has received inadequate medical care is essentially

a disagreement with the level of care that he has received. Such disagreement

does not rise to the level of an Eighth Amendment violation. Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Additionally, Martinez offers no

explanation to this court regarding the relationship of the named defendants to

his claim that officials acted with deliberate indifference to his medical needs.

See Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993); Farmer v. Brennan,

511 U.S. 825, 847 (1994); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994).

Finally, Martinez’s argumentto this courtis differentfrom and conflicts with the

allegations that he made in the district court.

Martinez’s complaint lacked an arguable basis in law or fact, and the

district court did not err in dismissing the complaint. His appeal is without

arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983). Because Martinez’s appeal is frivolous, it is dismissed. 5TH CIR.
No. 07-10434

3

R. 42.2. The district court’s dismissal of this case and this court’s dismissal as

frivolous count as two strikes against Martinez for purposes of 28 U.S.C.

§ 1915(g). See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.

1996). Martinez is cautioned that if he accumulates three strikes he may not

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).

APPEAL DISMISSED; SANCTION WARNING ISSUED.