* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

January 12, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-11152

Summary Calendar

LARRY MICHAEL NEWLAND,

Plaintiff-Appellant,

versus

Medical Doctor ADEL NAFRAWI; DR. STEPHEN PECK; 

STEVEN RIELLY, Physician’s Assistant; D. PRUITT, Medical

Director; HENDRICK MEDICAL CENTER; D.O. MARK MAXWELL,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:03-CV-100

--------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Larry Michael Newland, Texas prisoner # 658279, appeals the

magistrate judge’s dismissal of his 42 U.S.C. § 1983 complaint as

frivolous and for failure to state a claim pursuant to 28 U.S.C.

§§ 1915(e) and 1915A. He argues generally that the magistrate

judge erred in dismissing his claim as frivolous and for failure

to state a claim and that he alleged sufficient facts to state a

claim that the defendants were deliberately indifferent to his

serious medical needs. Newland’s allegations amount at most to
No. 05-11152 

-2-

negligence, his disagreement with his medical treatment, or

unsuccessful treatment. See Varnado v. Lynaugh, 920 F.2d 320,

321 (5th Cir. 1991). Newland has not shown that the defendants

denied him medical care or that their actions constituted

deliberate indifference to his serious medical needs. See Wilson

v. Seiter, 501 U.S. 294, 303 (1991). Newland has not shown that

the magistrate judge erred in dismissing his claim that the

defendants were deliberately indifferent to his serious medical

needs pursuant to § 1915(e) and § 1915A. See Wilson, 501 U.S. at

303; Varnado, 920 F.2d at 321. To the extent that Newland is

attempting to raise a different claim on appeal that the

defendants did not provide him with assistant in using the

restroom, taking a shower, or retrieving his food tray, Newland’s

allegations involves factual questions that could have been

resolved if he had raised them in the district court. Thus, the

error, if any, cannot have been “plain.” Robertson v. Plano City

of Texas, 70 F.3d 21, 23 (5th Cir. 1995).

Newland argues that the magistrate judge erred in using the

heightened pleading standard in dismissing his complaint. The

record shows that the magistrate judge dismissed Newland’s claim

pursuant to §§ 1915(e) and 1915A as frivolous and for failure to

state a claim and did not apply the heightened pleading standard.

Newland argues that the defendants were deliberately

indifferent to his health and safety. Newland’s allegations do

not rise to a constitutional violation absent an allegation of
No. 05-11152 

-3-

physical harm. See 42 U.S.C. § 1997e(e); see also Jones v.

Greninger, 188 F.3d 322, 326 (5th Cir. 1999).

Newland has not shown that the magistrate judge erred in

dismissing his complaint for failure to state a claim upon which

relief may be granted. See Hart v. Hairston, 343 F.3d 762, 764

(5th Cir. 2003). Newland is advised that this court’s affirmance

of the district court’s dismissal of his complaint as frivolous

and for failure to state a claim counts as a strike for purposes

of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,

387 (5th Cir. 1996).

AFFIRMED; SANCTION WARNING ISSUED.