               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 02-40747
                        Conference Calendar



ODELL BURGESS, SR.,

                                         Plaintiff-Appellant,

versus

RONALD DAVIS, DR.,

                                         Defendant-Appellee.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. G-00-CV-118
                       --------------------
                         February 19, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Odell Burgess, Sr., Texas prisoner # 579316, appeals the

28 U.S.C. § 1915(e)(2)(B) dismissal as frivolous of his 42 U.S.C.

§ 1983 lawsuit alleging an Eighth Amendment violation.   Burgess

complained that a prison physician, Dr. Davis, was deliberately

indifferent to his medical needs by providing inadequate medical

care and, specifically, by failing to examine him personally for

more than 48 hours after he suffered an injury.



     *
        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that this opinion should not be published and is not precedent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. 02-40747
                                 -2-

     The essence of Burgess’ complaint is not that he was denied

medical care but that he could have received better care.   His

disagreement with the treatment he received does not state a

cause of action under § 1983.   See Varnado v. Lynaugh, 920 F.2d

320, 321 (5th Cir. 1991).   At most, his complaint is one of

negligence or medical malpractice, which does not rise to the

level of a constitutional violation.   Id.   Moreover, because

Burgess has not specified any substantial injury he suffered

which is attributable to the delay in physical examination,

his claim fails.   See Mendoza v. Lynaugh, 989 F.2d 191, 195

(5th Cir. 1993).

     Burgess now alleges, for the first time, that his step 2

grievance has resulted in disciplinary action against Dr. Davis,

which he asserts buttresses his claim of deliberate indifference.

Although he presented his step 2 grievance to the district court,

he made no argument concerning his success at the administrative

level.   This court will therefore not consider the argument.     See

Shanks v. AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir.

1999); Burch v. Coca-Cola Co., 119 F.3d 305, 319 (5th Cir. 1997).

Furthermore, whether Dr. Davis failed to comply with prison

procedures when treating Burgess does not mean that his treatment

rose to the level of a constitutional violation.

     The district court’s judgment is AFFIRMED.
