IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10345 Conference Calendar

ANTHONY D. WILKES,

Plaintiff-Appellant,

versus

RICHARD HULTS, Doctor; GAIL ANDERSON,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 1:01-CV-155 -------------------- October 30, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Anthony D. Wilkes, Texas state prisoner # 799333, argues

that the magistrate judge erred in dismissing as frivolous his

complaint alleging that the defendants acted with

deliberate indifference to his serious medical needs. The

district court must dismiss a prisoner’s in forma pauperis (IFP)

civil rights complaint if the action is frivolous. Black v.

Warren,

(5th Cir. 1998); see 28 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10345 -2-

§ 1915(e)(2)(B)(i); 28 U.S.C. § 1915A(b)(1).

Wilkes’ responses to the questionnaire regarding the factual

basis for his claim reflect that he received continual medical

examinations and treatment for his ear infection. His

allegations that he disagreed with the prescribed medical

treatment because it did not cure his ear infection raised a

medical malpractice claim at best. Such allegations do not

reflect deliberate indifference and, thus, do not rise to the

level of a constitutional violation. See Estelle v. Gamble,

(1976); Varnado v. Lynaugh,

(5th

Cir. 1991).

The magistrate judge did not abuse her discretion in

dismissing Wilkes’ complaint as frivolous. Because Wilkes’

appeal is without arguable merit, it is DISMISSED as frivolous.

See 5TH CIR. R. 42.2; Howard v. King,

(5th

Cir. 1983). The dismissal of the instant appeal as frivolous and

the district court’s dismissal of Wilkes’

complaint as frivolous each count as a strike for purposes of

(g). See Adepegba v. Hammons,

(5th Cir. 1996). Wilkes is warned that if 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 GIVEN.