                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         June 18, 2004

                                                                  Charles R. Fulbruge III
                                No. 04-20186                              Clerk
                              Summary Calendar


                               MARCOS ORTIZ,

                                                       Plaintiff-Appellant,
                                    versus

     JOE S. FERNALD; GARY G. MOHR; MELTON W. BROCK; N. JOHNSON,

                                                       Defendants-Appellees.

                          --------------------
            Appeals from the United States District Court
                  for the Southern District of Texas
                         USDC No. H-02-CV-2897
                          --------------------

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

       Marcos Ortiz, Texas prisoner # 1049113, proceeding pro se and

in forma pauperis (“IFP”), appeals the district court’s dismissal

of   his   42   U.S.C.   §   1983   complaint    for    failure   to    exhaust

administrative remedies and, in the alternative, as frivolous.

Ortiz does not address the district court’s determination that his

Eighth Amendment claims are subject to dismissal for failure to

exhaust administrative remedies.             He has therefore waived the

issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

       Ortiz argues that the district court erred in dismissing as


       1
        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that this opinion should not be published and is not precedent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.
frivolous his failure-to-protect and denial-of-medical-care claims.

Ortiz claimed that his Eighth Amendment rights were violated when

the defendants failed to protect him against a June 29, 2002,

assault by inmate Lewis Melvin, Jr.     Ortiz argues that his report

of a prior attack by another inmate, named Evans, and of a threat

of future violence put the defendants on notice that he would be

assaulted.   Ortiz’s allegations do not demonstrate a link between

the two attacks and do not establish that the defendants were

deliberately indifferent to an excessive risk to his safety.

See Farmer v. Brennan, 511 U.S. 825, 837 (1994).       Ortiz has not

shown that the district court abused its discretion in dismissing

his failure-to-protect claim as frivolous. See Berry v. Brady, 192

F.3d 504, 507 (5th Cir. 1999).

     Ortiz claimed that he was denied medical care following the

assault on June 29, 2002.     However, Ortiz admits that he was

examined following the assault and that he was given ice and

Tylenol for the cuts, swelling, and abrasions observed during the

examination.    The failure to discover, in the course of the

examination, the more serious injuries alleged by Ortiz is, at

best, an act of medical malpractice which is insufficient to

establish a constitutional violation.     See Varnado v. Lynaugh, 920

F.2d 320, 321 (5th Cir. 1991).       Ortiz has not shown that prison

officials were deliberately indifferent to his serious medical

needs. See Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994).

He has not shown that the district court abused its discretion in

                                 2
dismissing his denial-of-medical-care claim as frivolous.       See

Berry, 192 F.3d at 507.                             Ortiz’s appeal is

without arguable merit and is frivolous.    See Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.    The district

court’s dismissal of Ortiz’s complaint as frivolous counts as a

“strike” under 28 U.S.C.        § 1915(g), as does the dismissal of

this appeal.    See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th

Cir. 1996).    Ortiz is CAUTIONED if he accumulates three “strikes,”

he will no longer be allowed to 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

28 U.S.C. § 1915(g).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.




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