IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20774 Conference Calendar

DAVID MUDGE,

Plaintiff-Appellant,

versus

M. CHANEY, MD, Dr. Texas Technical and Health Sciences; WAYNE SCOTT, Director, Texas Department of Criminal Justice, Institutional Division,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CV-228 - - - - - - - - - -

August 24, 1999

Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.

PER CURIAM:*

David Mudge, Texas prisoner #689684, appeals the district

court’s dismissal as frivolous under

(e)(2)(B)(i), of his

complaint alleging

deliberate indifference to his serious medical needs.

Mudge’s motions for appointment of counsel and motion for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-20774 - 2 -

default judgment are DENIED.

The district court did not abuse its discretion in dismissing Mudge’s complaint

as frivolous. See Norton v. Dimazana,

(5th Cir.

1997). Mudge was seen by several doctors, and he was even

referred to an orthopedic specialist. Thus, whatever

deficiencies there may have been in Mudge’s treatment, if any,

certainly do not rise to the level of establishing deliberate

indifference on the part of the defendants. See Norton,

.

Mudge’s appeal is without merit and therefore frivolous.

See Howard v. King,

(5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R.

42.2. The district court’s dismissal of the present case and our

dismissal of this appeal count as two strikes against Mudge for

purposes of

(g). We caution Mudge that once he

accumulates three strikes, 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

(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.