* 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that this opinion should not be published and is not precedent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. 01-40652

Summary Calendar

 

THEODORE SIMMONS,

Plaintiff - Appellant,

versus

TRACY MURPHY, University of Texas Medical Branch Health Services

Manager Individually and in official capacity;

KENNETH BOWN, DR., University of Texas Medical Branch Medical

Director Individually and in official capacity;

THOMAS ANDERSON, University of Texas Medical Branch Doctor

Individually and in official capacity;

MOLLY JOHNSON, RN, University of Texas Medical Branch

Individually and in official capacity;

ANDREA MARTIN, RN, University of Texas Medical Branch

Individually and in official capacity;

PEGGY GRIFFIN, LVN, University of Texas Medical Branch 

Individually and in official capacity,

Defendants - Appellees.

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

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:00-CV-653

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

April 25, 2002

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

PER CURIAM:*

Theodore Simmons, Texas prisoner # 637798, appeals from

the district court’s dismissal of his civil rights complaint filed
No. 01-40652

-2-

pursuant to 42 U.S.C. § 1983 as frivolous and for failure to state

a claim. See 28 U.S.C. § 1915(e)(2)(B)(i) & (ii).

Prison officials violate the Eighth Amendment

proscription 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, 302-05 (1991). The medical

records and Simmons’ own allegations support the determination that

the defendants did not act with deliberate indifference and that

his condition was not serious. Simmons’ allegations reflect his

personal disagreement with the Michael Unit medical personnel’s

decision not to issue him a permanent clipper shave pass (“CSP”)

which included his mustache and in requiring him to shave in order

to evaluate his condition. Such disagreement with the treatment he

received does not amount to deliberate indifference. See Varnado

v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Thus, the district

court did not err in its judgment.

Simmons argues that the district court erred in using a

report of the type described in Martinez v. Aaron, 570 F.2d 317

(10th Cir. 1978), to resolve disputed factual issues. Whether

Simmons had a permanent CSP which included his mustache in 1996

does not directly contradict the finding, based on the Martinez

report, that during the time relevant to this lawsuit, November

1998 to January 2001, Simmons was issued temporary CSPs, which did

not include the mustache area. Nor does the finding in the

Martinez report that the “full face” CSP did not include the

mustache contradict Simmons’ allegation that he believed that “full

face” included the mustache area. Simmons’ understanding of the
No. 01-40652

-3-

term “full face” is not a factual dispute regarding what “full

face” means within the Michael Unit clipper shave policy.

Accordingly, Simmons has not shown that the district court erred in

its use of the Martinez report.

The judgment is AFFIRMED. The district court’s dismissal

of the complaint 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). Simmons 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 in

imminent danger of serious physical injury. See 28 U.S.C.

§ 1915(g).

AFFIRMED; THREE-STRIKES WARNING ISSUED.