                                                         United States Court of Appeals
                                                                  Fifth Circuit

                                                              FILED
                IN THE UNITED STATES COURT OF APPEALS        June 23, 2004
                        FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk

                             No. 03-11132
                         Conference Calendar



DARRYL D. FERGUSON,

                                          Plaintiff-Appellant,

versus

DR. ARCE, Correctional Corp. of America;
NFN TAYLOR, RN, Correctional Corp. of America -
Medical Supervisor; MICHAEL PHILLIPS, Warden,
Correctional Corp. of America,

                                          Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:03-CV-1168-A
                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Darryl D. Ferguson (Ferguson), Texas prisoner # 1066554,

appeals the dismissal of his civil rights action filed under 42

U.S.C. § 1983 for failure to state a claim upon which relief can

be granted.    Ferguson contends that the defendants denied him

adequate medical care for his hepatitis C in violation of the

Eighth Amendment.



     *
       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this opinion should not be published and is not precedent except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. 03-11132
                                 -2-

     The district court did not err in dismissing Ferguson’s 42

U.S.C § 1983 action because Ferguson alleged no facts that would

show that the defendants were deliberately indifferent to serious

medical needs.    See Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th

Cir. 1993).    Documents Ferguson submitted with his complaint show

that his hepatitis C has been monitored and treated based on his

health status.   The fact that Ferguson does not agree with what

medical care is appropriate does not state a claim of deliberate

indifference to serious medical needs.     See Norton v. Dimazana,

122 F.3d 286, 292 (5th Cir. 1997).

     For the first time on appeal, Ferguson argues the following:

(1) Correctional Corp. of America (CCA) is using preferential

treatment in treating inmates for hepatitis C, (2) CCA has

retaliated against him for filing grievances and a civil suit,

and (3) the Texas Department of Criminal Justice is denying him

treatment for his hepatitis C.   Because these issues are not

purely legal, they may not be raised for the first time on

appeal.   See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.

1991).

     Based on the foregoing, the judgment of the district court

is AFFIRMED.   Ferguson’s request for appointment of counsel is

DENIED.   The district court’s dismissal of Ferguson’s complaint

for failure to state a claim counts as a strike for purposes of

28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 103 F.3d 383, 387-

388 (5th Cir. 1996).   Ferguson is WARNED that if he accumulates
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                                -3-

three strikes, he may not proceed 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 28 U.S.C. § 1915(g).

     AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; SANCTION

WARNING ISSUED.
