                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                    REVISED September 21, 2007
                                                               June 7, 2007
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                           No. 06-11128
                         Summary Calendar


BOBBY J. JONES,

                                    Plaintiff-Appellant,

versus

UNIVERSITY OF TEXAS MEDICAL BRANCH HOSPITAL GALVESTON, Medical
Director and Staff Members; DALHART INFIRMARY MEDICAL DIRECTOR &
STAFF MEMBERS; Nurse FIRESTONE; Nurse BROWNLEE, RN,

                                    Defendants-Appellees.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                       USDC No. 2:05-CV-264
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Bobby J. Jones, Texas prisoner # 608371, appeals the

dismissal of his 42 U.S.C. § 1983 complaint, alleging deliberate

indifference to his serious medical needs.   The district court

dismissed the complaint as frivolous and for failure to state a

claim.   We review dismissal of a prisoner complaint as frivolous

for abuse of discretion, see Berry v. Brady, 192 F.3d 504, 507



     *
       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this opinion should not be published and is not precedent except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. 06-11128
                                -2-

(5th Cir. 1999), and for failure to state a claim de novo.

Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).

     According to the district court pleadings, Jones was treated

by Nurse Firestone for a spider bite on his leg with a heat pack.

Jones alleged that Firestone failed to check on him after

applying the pack, which caused a severe burn to his leg.     He

subsequently sought treatment from Nurse Brownlee when he noticed

a discharge from the dressing on his leg.   Brownlee told Jones

she could not treat him because he did not have a lay-in for the

infirmary.   Jones immediately sought assistance from prison

guards, who gave Brownlee approval.   Brownlee then treated the

leg and ordered an additional 14 days of treatment.   Jones

alleged that Brownlee made him wait in the infirmary for two

hours before treating him, however, in retaliation for his

seeking assistance from prison officials.

     Prison officials violate the constitutional prohibition

against cruel and unusual punishment when they demonstrate

deliberate indifference to a prisoner’s serious medical needs.

Wilson v. Seiter, 501 U.S. 294, 297 (1991).   Deliberate

indifference encompasses only unnecessary and wanton infliction

of pain repugnant to the conscience of mankind.   Estelle v.

Gamble, 429 U.S. 97, 105-06 (1976).   A showing of deliberate

indifference requires the inmate to submit evidence that prison

officials “‘refused to treat him, ignored his complaints,

intentionally treated him incorrectly, or engaged in any similar
                           No. 06-11128
                                -3-

conduct that would clearly evince a wanton disregard for any

serious medical needs.’”   Domino v. Texas Dep’t of Criminal

Justice, 239 F.3d 752, 756 (5th Cir. 2001)(citation omitted).

     At most, Jones has alleged claims against Firestone and

Brownlee for negligence or medical malpractice, which are

insufficient to give rise to a cause of action under § 1983.     See

Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

Additionally, Jones’s claim that Brownlee retaliated against him

is conclusional and alleges nothing more than his own personal

belief of retaliatory conduct.   See Johnson v. Rodriguez, 110

F.3d 299, 310 (5th Cir. 1997); Woods v. Smith, 60 F.3d 1161, 1166

(5th Cir. 1995).

     Jones also argues that the district court dismissed his

complaint without giving him an opportunity to respond to the

defendants’ motion to dismiss.   Because the defendants were never

served with the complaint there was no motion requiring a

response from Jones, and the district court was permitted to sua

sponte dismiss the complaint.    See Black v. Warren, 134 F.3d 732,

733 (5th Cir. 1998); 28 U.S.C. § 1915A, 1915(e)(2)(b).

     Jones also argues that the district court erroneously

dismissed the complaint without conducting a hearing under Spears

v. McCotter, 766 F.2d 179 (5th Cir. 1985), or giving him an

opportunity to amend the complaint.   The “principal vehicles

which have evolved for remedying inadequacy in prisoner pleadings

are the Spears hearing and a questionnaire to bring into focus
                            No. 06-11128
                                 -4-

the factual and legal bases of prisoners’ claims.”      Eason v.

Thaler, 14 F.3d 8, 9 (5th Cir. 1994).      The district court here

used a questionnaire instead of a Spears hearing, and Jones fails

to show the district court’s choice of this method prevented him

from adequately presenting his claims.      Cf. Green v. McKaskle,

788 F.2d 1116, 1120 (5th Cir. 1986).

     Jones’s appeal is without arguable merit and is dismissed as

frivolous.   See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983); 5TH CIR. R. 42.2.   Jones is cautioned that the district

court’s dismissal of his complaint and the dismissal of this

appeal count as strikes under 28 U.S.C. § 1915(g) and that if he

accumulates three strikes, he will not be able to proceed in

forma pauperis (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 Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
