               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-60787
                        Conference Calendar



ALFRED HUGHERY,

                                         Plaintiff-Appellant,

versus

PANOLA COUNTY SHERIFF’S DEPARTMENT; DAVID BRIANT, Sheriff;
“UNKNOWN” WEE, Nurse for Panola County Sheriff’s Department,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                     USDC No. 2:01-CV-53-P-B
                       --------------------
                          April 10, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Alfred Hughery, Mississippi prisoner # 49240, appeals the

district court’s dismissal as frivolous of his pro se and in

forma pauperis (IFP) civil rights complaint against Panola County

Sheriff David Briant, the Panola County Sheriff’s Office, and

Nurse Wee of the Sheriff’s Office.   After a hearing pursuant to

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the district

court determined that the Sheriff was not personally involved in

     *
        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that this opinion should not be published and is not precedent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. 01-60787
                                -2-

any of the alleged civil rights violations and that Hughery’s

claim against Nurse Wee was one of negligence not actionable in a

42 U.S.C. § 1983 proceeding.

     A prisoner’s IFP civil rights complaint shall be dismissed

if the district court determines that the action is frivolous or

fails to state a claim upon which relief may be granted.       Black

v. Warren, 134 F.3d 732, 733 (5th Cir. 1998); see 28 U.S.C.

§ 1915(e)(2).   A claim is frivolous if it lacks an arguable basis

in law or fact.   Berry v. Brady, 192 F.3d 504, 507 (5th Cir.

1999).   We review the dismissal of a prisoner’s complaint as

frivolous for an abuse of discretion.     Id.

     Hughery argues that Sheriff Briant had a responsibility to

see that he had medical treatment while he was housed in Briant’s

facility.   Supervisory liability may exist without “overt

personal participation" in the offensive act; however, in order

for his claim to be successful, Hughery must have shown that

Sheriff Briant implemented “a policy so deficient that the policy

itself is a repudiation of constitutional rights and is the

moving force of the constitutional violation."    See Thompkins v.

Belt, 828 F.2d 298, 304 (5th Cir. 1987).    Hughery makes no

allegation of such a policy, nor do his allegations reflect that

such a policy was responsible for the alleged constitutional

deprivation committed by Nurse Wee.

     Hughery also argues that Nurse Wee acted negligently in

administering a tuberculosis “shot.”    Although inadequate medical
                            No. 01-60787
                                 -3-

treatment may, at a certain point, reach the level of a

constitutional violation, negligence or medical malpractice does

not.    Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).

       Hughery has not demonstrated that the district court abused

its discretion by dismissing his complaint.    See Berry, 192 F.3d

at 507.    Accordingly, the judgment of the district court is

AFFIRMED.

       The district court’s dismissal of the complaint as frivolous

counts as a "strike" for purposes of 28 U.S.C. § 1915(g).       See

Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).

Hughery is WARNED that if he accumulates three strikes pursuant

to 28 U.S.C. § 1915(g), 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.    Id.

       AFFIRMED; SANCTION WARNING ISSUED.
