     Case: 10-10801     Document: 00511512673          Page: 1    Date Filed: 06/17/2011




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

                                                 FILED
                                                                            June 17, 2011
                                     No. 10-10801
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

WILLIAM N. OLIVER,

                                                   Plaintiff - Appellant

v.

DOCTOR KANAN, medical staff doctor at Federal Correctional Institution Fort
Worth; DOCTOR TOBERA, medical staff doctor at Federal Correctional
Institution Fort Worth; FEDERAL CORRECTIONAL INSTITUTION MEDICAL
STAFF,

                                                   Defendants - Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 4:09-CV-767


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Proceeding pro se and in forma pauperis, William Oliver, federal prisoner
# 44269-004, appeals the dismissal, for failure to state a claim, or as frivolous,
of his claim seeking relief under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) (establishing cause of
action to seek judicial relief against federal officers for constitutional-right

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                    No. 10-10801



violations). Oliver contends Doctors Kanan and Tobera, Physician’s Assistant
Marrero, and other unnamed medical staff of the Federal Correctional Institute
at Fort Worth, Texas: failed to provide care, or provided inadequate care, for
various medical ailments, in violation of the Eighth Amendment; and
discriminated against him on the basis of his race, in violation of the Fifth
Amendment.
      In dismissing Oliver’s complaint, the district court cited both 28 U.S.C.
§§ 1915 and 1915A; accordingly, our review is de novo. Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005).
      Prison officials violate the Eighth Amendment prohibition against cruel
and unusual punishment when they exhibit “deliberate indifference to the
serious medical needs of prisoners”. Lawson v. Dallas Cnty., 286 F.3d 257, 262
(5th Cir. 2002) (citation omitted). To state such a claim, plaintiff must prove:
“he was exposed to a substantial risk of serious harm”; and prison “officials were
actually aware of the risk, yet consciously disregarded it”. Id.
      Oliver claims, as insufficient or inappropriate, his receiving treatment for:
arthritis, a foot infection, chest and neck pains, and kidney problems.
Disagreeing with medical treatment, however, does not state an Eighth
Amendment deliberate-indifference claim. E.g., Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991). His alleging that medical staff improperly withheld
medication for his eyes, that he had a reaction to an unspecified medication, that
medical staff failed to provide him with soft sole shoes, and that Physician’s
Assistant Marrero stated he had no “wonder drug” for Oliver, fails to state the
harm suffered and fails to show that medical staff knew of, and disregarded, a
substantial risk of serious harm.
      Oliver also states doctors were aware of his diarrhea and bloody stool, but
failed to treat those conditions. Those allegations, however, show no duration


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                                   No. 10-10801



to his conditions and admit that doctors had performed tests to determine the
cause (the results of which had not all been returned). Thus, he again makes no
showing of conscious disregard of a substantial risk of serious harm by the
medical staff. See Lawson, 286 F.3d at 262.
      For breast pain and swollen right arm: Oliver alleged prison medical staff
did not treat his complaint, not that they consciously disregarded a risk of
serious harm. See id. at 262-63. Accordingly, Oliver fails to state a medical-
indifference claim. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
      Similarly, his vague and conclusory statements that defendants provided
white inmates with proper health care, but denied it to him, fail to state a
constitutional racial-discrimination claim. See Koch v. Puckett, 907 F.2d 524,
530 (5th Cir. 1990). He neither identifies a particular defendant nor states how
any defendant acted with a discriminatory purpose. See Taylor v. Johnson, 257
F.3d 470, 473 (5th Cir. 2001) (equal protection claim requires showing
discriminatory treatment stemming from discriminatory intent).
      Oliver is cautioned: dismissal of his complaint in district court under 28
U.S.C. § 1915A(b)(1) counts as a strike under 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996) (citation and internal
quotation marks omitted). Oliver is cautioned that if he accumulates three
strikes under § 1915(g), he will not 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).
      AFFIRMED; SANCTION WARNING ISSUED.




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