                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 20, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-20077
                          Conference Calendar


DENNIS E. POWELL,

                                      Plaintiff-Appellant,

versus

DR. ERNESTINE JULYE,

                                      Defendant-Appellee.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. 4:03-CV-3595
                          --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Dennis E. Powell, Texas prisoner # 650087, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint as

frivolous.     He argues that the district court abused its

discretion by:     (1) amending an order related to the production

of records in connection with the Spears** hearing; (2) not

suspending the Spears hearing because the medical records were

incomplete; (3) dismissing his complaint as frivolous; and



     *
       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this opinion should not be published and is not precedent except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.
     **
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
                            No. 04-20077
                                 -2-

(4) failing to rule on his motion for appointment of counsel

prior to dismissing his case.

     Powell has failed to show that the district court abused its

discretion by amending the order concerning the production of

records related to the Spears hearing or by failing to suspend

the hearing.    See Richardson v. Henry, 902 F.2d 414, 417 (5th

Cir. 1990); Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990).

Powell’s factual allegations do not rise to the level of

deliberate indifference to medical needs.    At most, he has stated

a claim for disagreement with medical treatment, which is not

actionable in a 42 U.S.C. § 1983 suit.     See Norton v. Dimazana,

122 F.3d 286, 292 (5th Cir. 1997).   In light of the fact that

Powell’s motion for appointment of counsel was not filed until

after his case was dismissed, his argument is without merit.       See

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

     Powell’s appeal is without arguable merit and is DISMISSED

as frivolous.   See 5TH CIR. R. 42.2; Howard, 707 F.2d at 219-20.

The district court’s dismissal of his complaint as frivolous and

the dismissal of this appeal as frivolous each count as a

“strike” for purposes of 28 U.S.C. § 1915(g).    See Adepegba v.

Hammons, 103 F.3d 383, 387 (5th Cir. 1996).    Powell is cautioned

that if he accumulates three “strikes” under 28 U.S.C. § 1915(g),

he will not be able to proceed in forma pauperis in any civil

action or appeal filed while he is incarcerated or detained in
                           No. 04-20077
                                -3-

any facility unless he is under imminent danger of serious

physical injury.   See 28 U.S.C. § 1915(g).

     APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
