UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40455 Summary Calendar

DENNIS MITCHELL KADLEC, Plaintiff-Appellant, versus ROY TONY GARCIA, Warden; UNIDENTIFIED COOK, Captain, Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Texas (6:00-CV-741) July 30, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:* Dennis Mitchell Kadlec, Texas prisoner # 791082, appeals, pro se, from the dismissal of his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) & (ii) as frivolous and for failure to state a claim upon which relief may be granted. Kadlec asserts the prison officials were deliberately indifferent to his medical needs when they refused to provide him with a handicap shower.

A dismissal of an in forma pauperis action as frivolous under subsection (B)(i) is reviewed for abuse of discretion. Black v. Warren,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 134 F.3d 732, 734 (5th Cir. 1998). A dismissal under subsection (B)(ii) for failure to state a claim is reviewed under the same de novo standard as is a dismissal under Federal Rule of Civil Procedure 12(b)(6). Id. Because the district court relied equally upon each rationale for dismissal, we review under the abuse of discretion standard.

A prisoner’s disagreement with prison officials regarding medical treatment is insufficient to establish a constitutional violation under the Eighth Amendment for indifference to medical needs. Norton v. Dimazana, 122 F.3d 286, 291-92 (5th Cir. 1997). It is the opinion of the prison medical personnel that Kadlec does not require a handicap shower. The defendants, Warden Garcia and Captain Cook, are thus abiding by the medical personnel’s instructions when they refuse to provide Kadlec with a handicap shower. In essence, Kadlec’s complaint reflects his disagreement with the medical staff regarding what medical treatment he should receive. Because, as a matter of law, such complaints are insufficient to establish a constitutional violation, the district court did not abuse its discretion in dismissing Kadlec’s complaint as frivolous. See id. The district court’s dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Kadlec is WARNED that if he accumulates three strikes, he may not proceed in forma pauperis in any civil action or appeal while he is incarcerated of detained in any facility unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).

AFFIRMED; SANCTIONS WARNING ISSUED