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

                                                                 FILED
                                                                 June 4, 2008
                               No. 07-51317
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

JOHN STEPHEN BAXTER

                                           Plaintiff-Appellant

v.

WARDEN EDWARDO CARMONA; DOCTOR SHERI TALLEY; KENETH
SEIDEL; CLARANCYE WILLIAMS; DIRECTOR BRAD LIVINGSTON

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Western District of Texas
                            USDC No. 4:07-CV-19


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      John Stephen Baxter, Texas prisoner # 618988, has filed a motion for leave
to proceed in forma pauperis (IFP) on appeal. The district court dismissed
Baxter’s 42 U.S.C. § 1983 complaint, holding that Baxter’s disagreement with
the course of treatment followed by the prison medical staff was insufficient to
state a claim under § 1983. The district court additionally determined that
Eleventh Amendment immunity shielded from monetary damages defendants


      *
      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should not be published and is not precedent except under the limited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. 07-51317

Carmona, Talley, Seidel, and Livingston in their official capacities and that
qualified immunity shielded all five defendants in their individual capacities as
Baxter failed to state a cognizable claim for deliberate indifference to medical
needs under the Eighth Amendment. The district court denied Moore’s motion
for leave to proceed IFP on appeal and certified that the appeal was not taken
in good faith finding that Baxter had presented no arguable or nonfrivolous issue
for appeal.
      Baxter now moves this court for leave to proceed IFP on appeal. In doing
so, Baxter is challenging the district court’s certification. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).      Baxter argues that the district court
wrongfully denied him leave to proceed IFP because the district court judge was
biased in favor of the defendant. The adverse ruling itself is insufficient to
support Baxter’s allegation of bias and Baxter’s conclusory allegations of the
district court judge’s friendship with Talley is also insufficient. See Liteky v.
United States, 510 U.S. 540, 555 (1994).
      Liberally construed, Baxter’s brief additionally argues that the defendants
violated the Eighth Amendment’s prohibition against cruel and unusual
punishment when they failed to provide surgery and appropriate medication for
his orthopedic issues, and confiscated his walking cane. Baxter has failed to
show that the defendants exhibited deliberate indifference to his serious medical
needs in violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97,
101, 104-05 (1976); Farmer v. Brennan, 511 U.S. 825, 847 (1994); see Reeves v.
Collins, 27 F.3d 174, 176-77 (5th Cir. 1994) (applying the Farmer standard in the
context of a denial-of-medical-care claim). Baxter’s arguments demonstrate only
a disagreement about his medical treatment or negligence, which is insufficient
to establish an unconstitutional denial of medical care. Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991).   Baxter has not shown that the district
court’s certification that an appeal would not be taken in good faith was
incorrect. The instant appeal is without arguable merit and is thus frivolous.

                                        2
                                   No. 07-51317

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, Baxter’s
request for IFP is denied and his appeal is dismissed. See Baugh, 117 F.3d at
202, n.24; 5TH CIR. R. 42.2. Baxter is cautioned that our dismissal of this appeal
as frivolous and the district court’s dismissal of his complaint for failure to state
a claim each count as a strike under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Baxter is also cautioned that
if he accumulates three strikes under § 1915(g), he may not proceed 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 § 1915(g).
       MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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