                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 16, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-20131
                         Summary Calendar


                           EDWARD TRIGO,

                                              Plaintiff-Appellant,

                              versus

        TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL
    DIVISION OFFICIALS, unnamed defendants; UNIVERSITY OF TEXAS
   MEDICAL BRANCH; TEXAS TECH UNIVERSITY HEALTH SCIENCE CENTER,
       Medical Staff, Unnamed Defendants; MR. JONES, Physician
     Assistant UTMB/TDCJ-RMF; JOSEPH CURRY, Physician Assistant
 UTMB/TDCJ-RMF; DR. WYATT HOWELL, Price Daniels Unit; DR. DENISE
    DESHIELDS, Regional Director Office of Health Care Systems,

                                             Defendants-Appellees.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 4:05-CV-2012
                       --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Edward Trigo, Texas prisoner # 1173465, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 action challenging the

denial of treatment for hepatitis C.   The district court

dismissed Trigo’s complaint as frivolous pursuant to 28 U.S.C.

§ 1915A.   Trigo argues that the district court erred in

dismissing his complaint as frivolous because the 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this opinion should not be published and is not precedent except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.
                           No. 06-20131
                                -2-

exhibited deliberate indifference to his serious medical needs.

He asserts that the extremely high levels of his liver enzymes,

as shown by laboratory reports, established that the appellees

should have known that the delay or denial of treatment would

cause serious harm to his liver.   Trigo focuses on appeal on two

occasions when he was denied treatment for allegedly nonmedical

reasons.   First, he contends that he was denied treatment for

hepatitis C in August 2003 based on a policy requiring that

inmates be incarcerated for 12 months before they received

treatment.   Second, he asserts that he was denied treatment in

May 2004 based on a policy that treatment would be provided only

if the inmate was not due to be discharged within 12 months.

Trigo contends that he did not receive any medication for

hepatitis C and that the failure to treat this condition resulted

in his developing cirrhosis of the liver.

     We review de novo the district court’s dismissal pursuant to

§ 1915A.   Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.

1998).   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).   Unsuccessful medical

treatment, acts of negligence, neglect, or medical malpractice

are insufficient to give rise to a § 1983 cause of action.

Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).   “[D]elay
                             No. 06-20131
                                  -3-

in medical care can only constitute an Eighth Amendment violation

if there has been deliberate indifference, which results in

substantial harm.”   Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th

Cir. 1993).

     Trigo has asserted the denial of medical treatment for

hepatitis C based on policy, rather than on medical, reasons and

that he was substantially harmed by the denial of treatment

because this led to his developing cirrhosis.   Given these

allegations, the district court erred in dismissing Trigo’s

complaint as frivolous.   See Wilson, 501 U.S. at 301-03; see

also, McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004).

Accordingly, we vacate the district court’s judgment and remand

for further consideration in light of this decision.

     VACATED AND REMANDED.
