IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10186 Conference Calendar

JOHNNY RAY VALCHAR,

Plaintiff-Appellant,

versus

WILLIAM SWART, M.D.; EMANUEL BRUCOE, M.D.; P. MAXEY, R.N.; V. BURNES, L.V.N.,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 2:98-CV-142 - - - - - - - - - -

August 24, 1999

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

PER CURIAM:*

Johnny Ray Valchar, Texas prisoner # 744014, filed a

complaint against William Swart, M.D., a physician

employed at the Dalhart Unit of the Texas Department of Criminal

Justice, Institutional Division. Valchar contends that Swart was

deliberately indifferent to his serious medical needs because

Swart failed to promptly diagnose and treat his ruptured

appendix.

Valchar’s complaint alleges at most that Swart’s actions

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-10186 -2-

constituted negligence or malpractice, not deliberate

indifference to his serious medical needs. A case of mere

negligence, neglect, or medical malpractice does not give rise to

a § 1983 cause of action. Varnado v. Lynaugh,

(5th Cir. 1991).

Also named as defendants in Valchar’s § 1983 complaint were

medical personnel Emanuel Brucoe, M.D., P. Maxey, R.N., and V.

Burnes, L.V.N. Valchar does not argue in his brief on appeal

that the district court erred in dismissing his claims against

these individuals; therefore, these claims are abandoned. See

Yohey v. Collins,

(5th Cir. 1993).

The district court did not err or abuse its discretion in

dismissing Valchar’s complaint pursuant to

(e)(2)(B)(i) and (ii). Valchar’s appeal is without

arguable merit and is therefore frivolous. See Howard v. King,

(5th Cir. 1983). 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 Valchar for

purposes of

(g). We caution Valchar that once he

accumulates three strikes, he may not 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

(g). Valchar

should review any pending appeals to ensure that they do not

raise frivolous arguments.

APPEAL DISMISSED; SANCTION WARNING ISSUED.