                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                   December 13, 2004

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 03-41762
                              Summary Calendar



KEVIN M. BOETTNER,

                                          Plaintiff-Appellant,

versus

BEN RAIMER, Doctor; SUSAN L SCHUMACHER, Grievance Administrator;
ROCHELLE MCKINNEY, Registered Nurse; CALVIN CANNON, DDS; EDDIE
CHASTAIN, Clinical Manager,

                                          Defendants-Appellees.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                          USDC No. 6:02-CV-219
                          --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Kevin     M.    Boettner,   Texas   prisoner   #906170,    appeals      the

district court’s dismissal of his 42 U.S.C. § 1983 action for

failure to exhaust administrative remedies, for failure to state a

claim upon which relief may be granted, and as frivolous.             Boettner

also appeals the district court’s grant of summary judgment to

Calvin Cannon, D.D.S.       Boettner asserts that the magistrate judge

erred by denying his motion to amend his complaint and by altering


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this opinion should not be published and is not precedent except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

and omitting some of his claims.         Boettner contends that he

exhausted his administrative remedies regarding his claims against

Eddie Chastain and Dr. Ben Raimer.    Boettner argues that he stated

a viable claim against Dr. Cannon for threatening him.    He further

maintains that the district court erred by not appointing him

counsel for pre-trial matters.       For the first time on appeal,

Boettner asserts that the district court judge should have recused

himself.    He also contends that the district court erred by

granting Dr. Cannon’s motion for summary judgment and abused its

discretion by dismissing his deliberate indifference claim against

Dr. Cannon as frivolous.   Boettner additionally maintains that the

dismissals of his previous complaint and appeal as frivolous were

erroneous and should not count as strikes under 28 U.S.C. §

1915(g).

     Boettner had a right to amend his complaint once before the

service of a responsive pleading.     See FED. R. CIV. P. 15(a).   The

magistrate judge and the district court, however, did consider all

of the claims raised in the amended complaint that Boettner sought

to file.    As Boettner has not shown how the result of his case

could have been different if his motion to amend had been granted,

any error in the magistrate judge’s denial of that motion was

harmless.   See Cox v. Warden, Federal Detention Center, 911 F.2d

1111, 1114 (5th Cir. 1990). The record belies Boettner’s assertion

that the magistrate judge altered or omitted some of his claims.
                                No. 03-41762
                                     -3-

      As Boettner did not file a Step 1 grievance regarding his

claims against Chastain and Dr. Raimer, the district court did not

err   by    dismissing      those     claims     for     failure       to   exhaust

administrative remedies.        See Wendell v. Asher, 162 F.3d 887, 891

(5th Cir. 1998).         Because Boettner argues for the first time on

appeal that he was not required to name Chastain or Dr. Raimer in

his grievances and that he could not file grievances against them

because they were UTMB employees, we review these issues for plain

error only.      See Tilmon v. Prator, 368 F.3d 521, 524 (5th Cir.

2004).     As these arguments involve factual questions that could

have been resolved if he had raised them in the district court, any

error committed by the district court cannot have met the standard

for plain error.    See Robertson v. Plano City of Texas, 70 F.3d 21,

23 (5th Cir. 1995).

      The district court did not err by dismissing Boettner’s claim

against Dr. Cannon for threatening him because threats made against

inmates    by   prison    officials   do   not   amount      to   constitutional

violations.     See McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.

1983). Because Boettner has not shown the existence of exceptional

circumstances,     the    district    court    did     not   clearly    abuse   its

discretion by not appointing him counsel for pre-trial matters.

See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).

      Boettner argues for the first time on appeal that the district

court judge should have recused himself.             Thus, Boettner failed to

present his disqualification argument at a reasonable time in the
                               No. 03-41762
                                    -4-

litigation.   See Hollywood Fantasy Corp. v. Gabor, 151 F.3d 203,

216 (5th Cir. 1998).     Furthermore, as Boettner’s recusal argument

is based solely on rulings that the district court judge did or did

not make, he has not shown that recusal was necessary.         See Liteky

v. United States, 510 U.S. 540, 555 (1994).

      Boettner’s deliberate indifference claim against Dr. Cannon

was based upon his allegation that Dr. Cannon did not provide him

with the treatment that he requested. Boettner’s disagreement with

the   treatment   that   Dr.    Cannon     offered   him,   however,   was

insufficient to state a claim for deliberate indifference.             See

Estelle v. Gamble, 429 U.S. 97, 104 (1976); Varnado v. Lynaugh, 920

F.2d 320, 321(5th Cir. 1991).            Boettner did not allege facts

showing that Dr. Cannon had a “wanton disregard” for his dental

needs.   See Domino v. Texas Dep’t. of Criminal Justice, 239 F.3d

752, 755 (5th Cir. 2001).      Accordingly, the district court did not

abuse its discretion by finding that Boettner’s claim did not have

an arguable basis in law and was frivolous, nor did the district

court err by granting Dr. Cannon’s motion for summary judgment.

See Gonzales v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998).

Boettner’s collateral attack on the dismissals of his complaint and

appeal in Boettner v. Kirkwood, No. 00-41454 (5th Cir. July 24,

2001) (unpublished), is barred by the doctrine of res judicata.

See Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th Cir. 1983).

      Boettner’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
                                   No. 03-41762
                                        -5-

Accordingly, it is DISMISSED.               See 5TH CIR. R. 42.2.            Both the

district court’s dismissal of the complaint and our dismissal of

the instant appeal count as “strikes” for purposes of 28 U.S.C.

§ 1915(g).      See Patton v. Jefferson Corr. Ctr., 136 F.3d 458,

463-64 (5th Cir. 1998); Adepegba v. Hammons, 103 F.3d 383, 388 (5th

Cir. 1996). Boettner has also acquired at least two other strikes.

See Boettner v. Kirkwood, No. 00-41454 (5th Cir. July 24, 2001)

(unpublished).         Boettner has now accumulated more than three

strikes under 28 U.S.C. § 1915(g), and 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).

     APPEAL     DISMISSED     AS    FRIVOLOUS;      28   U.S.C.    §    1915(g)        BAR

IMPOSED; ALL OUTSTANDING MOTIONS DENIED.
