                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         March 19, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-41185
                         Summary Calendar


JIMMY ROY DAVIDSON,

                          Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
TEXAS TECH HEALTH SCIENCE CENTER; THE UNIVERSITY OF TEXAS
MEDICAL BRANCH; TIM REVELL; UNKNOWN CRAWFORD, Dr.; UNKNOWN
CLAYTON, Dr.; PAT HARRISON; UNIDENTIFIED PARTY, Step Two
Grievance Official; M. KELLY, Dr.,

                          Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                         (No. 6:03-CV-62)
                       --------------------

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Jimmy Roy Davidson, Texas state prisoner

# 612588, appeals the magistrate judge’s dismissal of his pro se

civil rights action as frivolous.1   See 28 U.S.C. § 1915A(b)(1).

Davidson’s principal contention is that the defendants-appellees

     *
        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this opinion should not be published and is not precedent except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.
     1
       The parties consented to proceed before the magistrate judge
pursuant to 28 U.S.C. § 636(c). The magistrate judge also held
that dismissal was justified because Davidson failed to exhaust his
administrative remedies, a ruling that we need not examine.
violated   his     constitutional      rights         in     refusing      to    treat   his

hepatitis B and C by medicating him with interferon.                            We affirm.

     Under 28 U.S.C. § 1915A(b)(1), a district court may dismiss an

IFP complaint as frivolous or for failure to state a claim.                                A

complaint is frivolous if it lacks an arguable basis in either law

or fact.    Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

     Prison      officials     violate      the       constitutional        proscription

against cruel and unusual punishment when they are deliberately

indifferent to a prisoner’s serious medical needs, as doing so

constitutes unnecessary and wanton infliction of pain.                            Wilson v.

Seiter, 501 U.S. 294, 297 (1991).                 To prevail on such a claim, a

plaintiff “must allege acts or omissions sufficiently harmful to

evidence    deliberate       indifference         to       serious    medical       needs.”

Estelle    v.    Gamble,     429     U.S.       97,    106     (1976).          Deliberate

indifference encompasses only unnecessary and wanton infliction of

pain repugnant to the conscience of mankind.                    Id. at 105-06.           “The

legal conclusion of 'deliberate indifference[]' . . . must rest on

facts    clearly    evincing       'wanton'      actions       on    the    part    of   the

defendants.”       Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.

1985).

     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 conduct that would clearly evince a wanton

disregard for any serious medical needs.'"                     Domino v. Texas Dep't

                                            2
of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001)(quoting

Johnson, 759 F.2d at 1238).               Unsuccessful medical treatment,

ordinary    acts    of   negligence,      or   medical   malpractice    do   not

constitute a cause of action under § 1983.            Stewart v. Murphy, 174

F.3d 530, 534 (5th Cir. 1999).          Absent exceptional circumstances,

a   prisoner's     disagreement    with     his   medical   treatment   is   not

actionable under § 1983.         Banuelos v. McFarland, 41 F.3d 232, 235

(5th Cir. 1995).

      Davidson supports his claim of entitlement to relief by

referring   to     authorities    who   advocate    interferon   therapy     for

persons with psychiatric disorders by use of controlled trials,

nocturnal administration, dosage reduction, biweekly psychiatric

checkups, and psychoactive drugs.              Other than the fact that on

occasion his alanine aminotransferase (ALT) readings have been

somewhat elevated, however, Davidson has not shown any basis for

concluding that his hepatitis is or has been severe enough to

mandate such extraordinary medical intervention.

      Davidson faults appellee Dr. Revell for not having referred

him for determination of the degree of his liver inflammation,

fibrosis, or cirrhosis, as to which several authorities recommend

a biopsy.    Davidson’s ALTs were approximately normal as of April

2002, however, when he was transferred from Dr. Revell’s unit.

      Davidson recognizes that, as the magistrate judge observed,

TDCJ-ID Policy B-14.13 provides that “[s]evere depression or other

active neuropsychiatric disorder is classified as an ‘absolute

                                        3
contraindication’ to interferon therapy.”                   Davidson nevertheless

argues that appellees Dr. Crawford and Dr. Clayton should have

referred    him   to    a    psychiatrist        to   determine    whether    severe

depression or some other active psychiatric syndrome made him

ineligible for such treatment.              Even if these allegations proved

true, however, these psychiatrists’ acts or omissions would amount

to nothing more than malpractice or negligence, which are not

actionable under § 1983.           See Stewart, 174 F.3d at 534.           Thus, the

magistrate judge did not err in concluding that Davidson failed to

show that the denial of interferon therapy amounted to “deliberate

indifference to his serious medical needs,” as such denial was done

in compliance with generally accepted medical standards.

     Davidson also contends that the magistrate judge erred by

dismissing his claims under the Americans with Disabilities Act

(ADA).     He argues that he is disabled by mental illness and that

unspecified appellees violated Policy B-14.13 by not providing

qualified    personnel       to    determine      the    degree    of    severity   or

activeness of his mental illness and by not providing him with

controlled trials of medication with interferon.

     Davidson’s ADA claim lacks merit because he has not alleged or

shown that he was adversely treated solely because of his handicap

of mental illness.          See Judice v. Hosp. Serv. Dist. No. 1, 919 F.

Supp. 978, 981 (E.D. La. 1996).             As the magistrate judge concluded,

“[t]he     refusal      to       administer      drugs     which    are    medically

contraindicated        by    a    medical       disorder   does    not    constitute

                                            4
‘discrimination’ because of this disorder; rather, such refusal is

proper and responsible medical conduct.”

      Davidson asserts further that he is entitled to relief because

the magistrate judge denied his motion for appointment of counsel.

The magistrate judge denied the motion prior to the district

judge’s authorization for further proceedings to be conducted by

the magistrate judge, subject to later appointment of counsel if

necessary.       Davidson did not, however, appeal the magistrate

judge’s   ruling      or    again       request    that    counsel    be     appointed.

Accordingly,     we     lack   jurisdiction         to    review     this    denial   of

Davidson’s motion for appointment of counsel. See Colburn v. Bunge

Towing, Inc., 883 F.2d 372, 379 (5th Cir. 1989).

      Davidson    has      filed    a    motion    requesting      that     we   grant a

mandatory    injunction        directing          the    appellees    to     administer

interferon to him immediately.                  He argues that his life is in

danger because he has both hepatitis B and hepatitis C.                               As

Davidson is not likely to prevail on the merits of his claims he is

not   entitled    to    such       relief    at    the    appellate       level.      See

Libertarian Party of Texas v. Fainter, 741 F.2d 728, 729 (5th Cir.

1984).

      Davidson also seeks leave to amend his motion for injunctive

relief to include a request that we order his transfer to federal

protective custody for service of the remainder of his sentence.

He assert that the appellees may cause his death to avoid monetary

liability and public exposure. This motion is denied as frivolous.

                                            5
     In   addition,    Davidson   seeks   authority      to   supplement   the

appellate record.     The motion is denied because Davidson has not

shown that the additional documents are necessary to the proper

disposition of his appeal.        See Harvey v. Andrist, 754 F.2d 569,

571 (5th Cir. 1985).

     Finally,   we    deny   Davidson’s   motion   for    leave   to   file a

supplemental or letter brief.       See 5TH CIR. R. 28.5.

AFFIRMED; ALL OUTSTANDING MOTIONS DENIED.




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