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 1998-11

Sigers v. Lewis ( 1998 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60136
Summary Calendar
FREDDIE SIGERS,
Plaintiff-Appellant,
versus
MORENOL M. LEWIS; MARIA SERAPIO,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:96-CV-109PG
- - - - - - - - - -
October 2, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Freddie Sigers, Mississippi prisoner # 59682A, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action for
failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).    Sigers contends that
Dr. Morenol M. Lewis and Dr. Maria Serapio denied him adequate
medical care for his serious medical needs in violation of his
Eighth Amendment rights.    Sigers alleged that he received medical
treatment and pain medication for a back injury but that he
continues to suffer back pain.    Sigers’ dissatisfaction or
*
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that this opinion should not be published and is not precedent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.
disagreement with the medical treatment or diagnosis he received
does not constitute deliberate indifference to his serious
medical needs in violation of the Eighth Amendment.      See Varnado
v. Lynaugh,
    920 F.2d 320
    , 321 (5th Cir. 1991).      Unsuccessful
medical treatment, negligence, or medical malpractice are also
insufficient to give rise to a claim of deliberate indifference.
    Id. For the 
    first time on appeal, Sigers argues that he did not
receive pain medication for long periods of time.      Because
Sigers’ claim involves factual questions which were not resolved
in the district court, he has not demonstrated plain error.        See
Robertson v. Plano City of Texas,
    70 F.3d 21
    , 23 (5th Cir. 1995).
Sigers also argues that the district court erred in not
appointing counsel to represent him in the district court.
Sigers has failed to demonstrate that any exceptional
circumstances existed requiring counsel to be appointed in the
district court.    See Ulmer v. Chancellor,
    691 F.2d 209
    , 213 (5th
Cir. 1982).
Sigers’ appeal is without arguable merit and should be
dismissed.    See Howard v. King,
    707 F.2d 215
    , 219-20 (5th Cir.
1983).   The district court’s dismissal of this case and Sigers’
appeal in this case constitute two strikes against him for
purposes of 28 U.S.C. § 1915(g).       See Sigers v. Lewis, No. 2:96-
CV-109PG (S.D. Miss. February 19, 1997); see also Adepegba v.
Hammons,
    103 F.3d 383
    , 388 (5th Cir. 1996).      If a third district
court action or appeal filed by Sigers is dismissed as frivolous,
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he will be barred from bringing a civil action or appeal as a
prisoner proceeding in forma pauperis unless he is under imminent
danger of serious physical injury.    See § 1915(g).   Sigers should
review any pending appeals to ensure that they do not raise
frivolous issues.
APPEAL DISMISSED.   5TH CIR. R. 42.2.   SANCTION WARNING ISSUED
UNDER 28 U.S.C. § 1915(g).
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