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

                                                 FILED
                                                                          February 18, 2009
                                     No. 08-10186
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

KEITH MARSHALL

                                                   Plaintiff-Appellant

v.

D PATEL, MD; F BAXTER, FHA; TTUHSC; DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION; TIMOTHY C SIMMONS, Senior Warden;
LEONARD D ELLIS, Assistant Warden

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:06-CV-141


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Keith Marshall, Texas prisoner # 609093, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous. Marshall does not
renew his claims against F. Baxter, the Texas Tech University Health Sciences
Center, Doug Dretke, Timothy Simmons, and Leonard Ellis. Because Marshall
does not brief any issue relating to these defendants, all issues are deemed

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10186

abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1997).
      Marshall argues that Dr. Patel demonstrated deliberate indifference to his
serious medical needs because Dr. Patel’s order to increase the dosage of
Marshall’s pain medication was inexplicably delayed for several months. Prison
officials violate the constitutional prohibition against cruel and unusual
punishment when they demonstrate deliberate indifference to a prisoner’s
serious medical needs, constituting an unnecessary and wanton infliction of
pain. Wilson v. Seiter, 501 U.S. 294, 297 (1991). Acts of negligence or medical
malpractice are insufficient to establish a constitutional violation. Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).       Marshall fails to allege facts
relating to the delay which are sufficient to support a claim of deliberate
indifference to a serious medical need as is required to proceed under the Eighth
Amendment and § 1983. See id.
      Marshall also contends that the district court erred in dismissing his
complaint prior to discovery and by denying his post judgment motion to amend
his complaint. Marshall has not shown that the district court’s failure to allow
him to conduct discovery was arbitrary or clearly unreasonable as he offers no
indication what the discovery would have revealed that would have changed the
underlying nature of the complaint. See Moore v. Willis Indep. Sch. Dist., 233
F.3d 871, 876 (5th Cir. 2000). Additionally, Marshall’s attempt to amend his
complaint to add a new defendant would have been futile because it would not
change the substance of Marshall’s complaint, which simply does not state a
claim of deliberate indifference to his serious medical needs; therefore, the
district court did not err in denying Marshall’s motion. See Rosenzweig v. Azurix
Corp., 332 F.3d 854, 864-65 (5th Cir. 2003).
      Marshall’s appeal is without arguable merit and, thus, frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Therefore, it is dismissed.
See 5 TH C IR. R. 42.2. The district court’s dismissal of Marshall’s complaint as

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                                  No. 08-10186

frivolous and this court’s dismissal of Marshall’s appeal count as two strikes for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). Marshall is cautioned that if he accumulates three strikes,
he will no longer be allowed to 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 § 1915(g).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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