          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                 October 21, 2008
                                No. 08-10140
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

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.

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 08-10140

      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 OF 28 U.S.C. § 1915(g) BAR
NOTED; SANCTION WARNING ISSUED.

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