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

                                                 FILED
                                                                            July 22, 2009
                                     No. 08-31253
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

MELVIN TASSIN

                                                   Plaintiff-Appellant

v.

CORRECTIONAL CENTER LAFAYETTE PARISH; MICHAEL NEUSTROM;
JOHN DOE, Warden; KIM LEBLANC, Doctor

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:08-CV-1041


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Melvin Tassin, Louisiana prisoner # 192651, appeals the dismissal of his
42 U.S.C. § 1983 civil rights suit as frivolous and for failure to state a claim upon
which relief can be granted.             Tassin alleges that the defendants were
deliberately indifferent to his medical needs in violation of the Eighth
Amendment by prescribing him unnecessary medication that caused him
internal injuries and distress.


       *
         Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
                                  No. 08-31253

      Because the district court dismissed Tassin’s suit pursuant to both 28
U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1), review is de novo, Geiger v. Jowers,
404 F.3d 371, 373 (2005), using the same standard of review applicable to
Federal Rule of Civil Procedure 12(b)(6) dismissals, Harris v. Hegmann, 198 F.3d
153, 156 (5th Cir. 1999). When reviewing a dismissal for failure to state a claim,
all well-pleaded facts are accepted as true and are viewed in the light most
favorable to the plaintiff. In re Katrina Canal Breaches Litigation, 495 F.3d 191,
205 (5th Cir. 2007). “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead ‘enough facts to state a claim to relief that is plausible on its face.’”
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
      “It is cruel and unusual punishment to hold convicted criminals in unsafe
conditions.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (internal quotation
marks and citation omitted); see Herman v. Holiday, 238 F.3d 660, 664 (5th Cir.
2001). A plaintiff states a cause of action under the Eighth Amendment when
he alleges that a defendant has, with deliberate indifference, exposed him to an
unreasonable risk of serious damage to his future health. Helling, 509 U.S. at
35; Burleson v. Texas Dep’t of Criminal Justice, 393 F.3d 577, 589 (5th Cir.
2004). “Disagreement with medical treatment does not state a claim for Eighth
Amendment indifference to medical needs.” Norton v. Dimazana, 122 F.3d 286,
292 (5th Cir. 1997). Further, defendants may not be held liable for their alleged
negligent acts under § 1983. Daniels v. Williams, 474 U.S. 327, 329–30 (1986).
      Tassin alleges only that the medication in question was unnecessary, that
his outside doctor should have been consulted, that necessary medical tests were
not performed, and that he suffered injuries caused by the defendants’s
negligence. These allegations, taken as true, do not state a plausible claim for
deliberate indifference. See Bell Atl., 550 U.S. at 570; Burleson, 393 F.3d at 589.
      Tassin’s appeal lacks any issue of arguable merit and is therefore
dismissed as frivolous. See Fifth Cir. R. 42.2; Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983). The district court’s dismissal of his complaint and this court’s

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dismissal of this appeal as frivolous count as two strikes for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
Tassin is cautioned that if he accumulates three strikes, he will no longer be
allowed to proceed IFP in any civil action or appeal filed while he is detained or
incarcerated in any facility unless he is under immediate danger of serious
physical injury. See § 1915(g).




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