IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30007 Conference Calendar

KERRY WINDHAM,

Plaintiff-Appellant,

versus

UNKNOWN MCKNIGHT; UNKNOWN DUNBAR; MS. SUSAN; MR. MICHAEL, Dialysis Unit, EKL; TAMMY, Dialysis Unit, EKL; CANDICE, Dialysis Unit, MR. PATRICK, Dialysis Unit, EKL,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Middle District of Louisiana USDC No. 97-CV-877 --------------------

October 20, 1999

Before JONES, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

Kerry Windham, Texas inmate #92138, proceeding pro se and in

forma pauperis (IFP), appeals the district court’s grant of

summary judgment in favor of the defendants and the dismissal of

his civil rights complaint. Windham contends that the defendants

acted with deliberate indifference to his medical needs. He

asserts that the defendants gave him illegal chemicals that

caused his condition to worsen. He contends that the defendants

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-30007 -2-

discontinued his hypertension medication and prescribed

psychotropic drugs without providing the proper medical

examinations. He contends that he has not been examined by a

physician while he has been receiving dialysis treatments.

We review the grant of summary judgment de novo. Fraire v.

City of Arlington,

(5th Cir. 1992). Summary

judgment is proper if the pleadings, discovery, and any affidavits filed in support of the motion

show that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(c). If the moving party meets the initial burden, the nonmovant must set forth specific facts showing the existence of a genuine issue for

trial. See Fed. R. Civ. P. 56(e). The nonmovant cannot satisfy his summary judgment burden

with conclusional allegations, unsubstantiated assertions, or only a scintilla of evidence. Little v.

Liquid Air Corp.,

(5th Cir. 1994) (en banc). Windham’s allegations indicate his disagreement with the

medical treatment that he has received or, at most, negligent or

unsuccessful treatment, which is not actionable under

. See Varnado v. Lynaugh,

(5th Cir. 1991)(unsuccessful medical

treatment, negligence, or medical malpractice do not give rise to a § 1983 cause of action;

disagreement with medical treatment is not actionable under § 1983 absent exceptional

circumstances). Accordingly, the district court did not err in

granting summary judgment in favor of the defendants.

By failing to brief them properly in this court, Windham has

abandoned his claims involving a conflict of interest and that

the district court denied his motion for an injunction, denied

his motion for a default judgment, dismissed his state law

claims, and allowed the defendants additional time to respond.

See Yohey v. Collins,

(5th Cir. 1993)(claims No. 99-30007 -3-

not adequately argued in the body of the brief are deemed

abandoned on appeal).

Windham’s appeal is without arguable merit and is frivolous.

See Howard v. King,

(5th Cir. 1983).

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

R. 42.2.

The dismissal of Windham’s appeal as frivolous counts as a

strike for purposes of

(g). See Adepegba v.

Hammons,

(5th Cir. 1996). We caution Windham

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 § 1915(g).

DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.