* 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should not be published and is not precedent except under the limited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. 08-10140

Conference Calendar

FREDERICK DEWAYNE MALONE

Plaintiff-Appellant

v.

DR WAGGENER; DR BYRD

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:08-CV-29

Before KING, BARKSDALE, and OWEN, Circuit Judges.

PER CURIAM:*

Frederick Dewayne Malone,Texas prisoner # 0699305, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint, in which he alleged that the

defendants denied him proper care for a long-standing back injury and skin

condition. Malone argues that the defendants demonstrated deliberate

indifference to his serious medical needs because they provided him with Tylenol

for his pain rather than Flexeril and also denied him Benadryl for his skin

condition. Malone further alleges that the defendants acted unprofessionally.

United States Court of Appeals

Fifth Circuit

F I L E D

October 21, 2008

Charles R. Fulbruge III

Clerk
No. 08-10140

2

Prison officials violate the constitutional prohibition against cruel and

unusual punishment when they demonstrate deliberate indifference to a

prisoner’s serious medical needs, constituting an unnecessary and wanton

infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297 (1991). Acts of negligence

or medical malpractice, and a prisoner’s disagreement with prison officials

regarding his medical treatment are insufficient to establish a constitutional

violation. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Rather, to

prevail on a claim of deliberate indifference to medical needs, the plaintiff must

establish that the defendant denied him treatment, purposefully gave him

improper treatment, or ignored his medical complaints. Domino v. Texas Dep’t

of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). 

Malone’s allegations amount to no more than a disagreement with his

medical care. He fails to allege facts to support a claim of deliberate indifference

to a serious medical need as is required to proceed under the Eighth Amendment

and § 1983. See Varnado, 920 F.2d at 321. Malone’s appeal is without arguable

merit and, thus, frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Therefore, it is dismissed as frivolous. See 5TH CIR. R. 42.2. The district

court’s dismissal of Malone’s complaint as frivolous and this court’s dismissal of

Malone’s appeal count as two strikes for purposes of 28 U.S.C. § 1915(g). See

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). 

While this appeal was pending, the court imposed the § 1915(g) bar

against Malone. See Malone v. Pedigo, No. 07-11025 (5th Cir. June 19, 2008).

We remind Malone that he is barred from proceeding 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 § 1915(g).

Malone is warned that if he continues to file frivolous actions or appeals, he will

be subject to increasingly severe sanctions, including monetary penalties.

APPEAL DISMISSED;PRIOR IMPOSITION OF28 U.S.C. § 1915(g) BAR

NOTED; SANCTION WARNING ISSUED.