     Case: 13-11099      Document: 00512625071         Page: 1    Date Filed: 05/09/2014




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

                                                                                  FILED
                                    No. 13-11099                                May 9, 2014
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk

JOSEPH OYE OGUNTODU, also known as Ayoola Oguntodu,

                                                 Plaintiff-Appellant

v.

CHERYL GARY, Nurse Practitioner; MICHAEL BRANIGAN,                                       Unit
Administrator; ASHLEIGH ROBERTS, LVN; NFN CHACON, LVN,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:13-CV-27


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Joseph Oye Oguntodu, Texas prisoner # 1728590, appeals the dismissal
of his pro se, in forma pauperis (IFP) 42 U.S.C. § 1983 suit alleging that the
defendants violated his Eighth Amendment rights.                     The district court
dismissed Oguntodu’s complaint for failure to state a claim upon which relief
could be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c).



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-11099

Oguntodu also filed a notice of appeal from the district court’s denial of his
postjudgment motion filed pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure.
      We normally review the dismissal of a civil rights complaint for failure
to state a claim de novo, using the same standard applicable to dismissals
under Federal Rule of Civil Procedure 12(b)(6). See Rogers v. Boatright, 709
F.3d 403, 407 (5th Cir. 2013); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005). “Under that standard, a complaint fails to state a claim upon which
relief may be granted when it does not contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Rogers,
709 F.3d at 407 (internal quotation marks and citation omitted). In this case,
however, since Oguntodu did not object to the magistrate judge’s report and
recommendation, which was adopted by the district court, our review is only
for plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-
29 (5th Cir. 1996) (en banc).
      To the extent that Oguntodu claims that the defendants inadequately
treated him with respect to his diabetic condition and his requests for diabetic
supplies, his disagreements with his medical treatment and his allegations of
negligence and unprofessional behavior do not state valid claims of deliberate
indifference to his serious medical needs. See Norton v. Dimazana, 122 F.3d
286, 292 (5th Cir. 1997); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991). Nor did Oguntodu allege facts giving rise to a valid Eighth Amendment
claim in connection with the collection of a $100 copayment for health care
services. See Morris v. Livingston, 739 F.3d 740, 748-49 (5th Cir. 2014). We
do not consider Oguntodu’s argument, raised for the first time on appeal, that
prison security staff denied him access to medical care.          See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Finally, by failing to



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                                No. 13-11099

address the basis for the district court’s denial of his Rule 59(e) motion,
Oguntodu has abandoned any challenge to that denial. See Brinkmann v.
Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Oguntodu’s appeal is without arguable merit and is dismissed as
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2. The dismissal of this appeal as frivolous and the district court’s
dismissal of Oguntodu’s complaint for failure to state a claim each count as a
strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). We caution Oguntodu that once he accumulates
three strikes, he may not 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 § 1915(g).
      APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.




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