     Case: 09-10319     Document: 00511003724          Page: 1    Date Filed: 01/13/2010




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

                                                  FILED
                                                                          January 13, 2010
                                     No. 09-10319
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

DAVID RUSSELL HALE,

                                                   Plaintiff-Appellant

v.

JOHN RASBERRY, Physician’s Assistant; SUNDAY WILSON, Nurse
Practitioner; RICHARD MENDEZ, Correctional Officer; ROGER CASTILLO,
Sergeant; JIMMY STAGGS, JR., Sergeant; DR. JOHN DOES; JANE DOES; MR.
JOHN DOES,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 5:08-CV-135


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
        David Russell Hale, Texas prisoner # 1100883, proceeding pro se and in
forma pauperis (IFP), appeals from the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2), 28 U.S.C.
§ 1915A(b), and 42 U.S.C. § 1997e(c). In his complaint, as well as on appeal, he
argues that: (1) there was a long delay before he began receiving medical

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10319    Document: 00511003724 Page: 2       Date Filed: 01/13/2010
                                 No. 09-10319

treatment for the Hepatitis C virus (HCV); (2) once he began receiving HCV
treatment, he was given an incorrect dosage, which caused side effects; and
(3) the HCV treatment was stopped, and he received disciplinary convictions in
retaliation for his filing of administrative grievances. We review the instant
dismissal utilizing the de novo standard. See Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005).
      Hale’s claims regarding his medical care for HCV are based upon
assertions of unsuccessful treatment or dissatisfaction with the medical care he
received. As such, he has failed to raise a constitutional issue regarding his
medical care. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Moreover, to the extent that Hale has raised factual allegations regarding an
infected tooth for the first time on appeal, those allegations are not cognizable.
See id. Because Hale does not show that the defendants exhibited deliberate
indifference regarding the problem with his tooth, he would not be entitled to
relief even if these allegations were cognizable. See Estelle v. Gamble, 429 U.S.
97, 105-06 (1976).
      Hale has also failed to make the requisite showing in conjunction with his
retaliation claims. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Accordingly, his claims were properly dismissed as frivolous. See Geiger, 404
F.3d at 373. The district court’s dismissal of Hale’s complaint counts as a strike
for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Hale is warned that if he accumulates three strikes, he will not be
allowed to bring a civil action or appeal a judgment IFP unless he is under
imminent danger of serious physical injury. See § 1915(g).
      The judgment of the district court is AFFIRMED.




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