IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10553 Conference Calendar

BRIAN D. MCQUEEN,

Plaintiff-Appellant,

versus

CARTER KARR, M.D., Individually; ROMALEE BARBAREE; WILLIAM E. GONZALEZ, M.D.; LANNETTE LINTHICUM, Dr.; ROCHELLE MCKINNEY,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:01-CV-390 -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Brian D. McQueen, Texas prisoner # 631997, appeals the 28

U.S.C. § 1997e(c)(1) dismissal as frivolous and for failure to

state a claim of his

civil rights lawsuit

asserting deliberate indifference to his serious medical needs,

specifically, his need for dental care. The district court’s

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10553 -2-

dismissal is reviewed de novo. Bazrowx v. Scott,

(5th Cir. 1998).

Prison officials violate the constitutional prohibition

against cruel and unusual punishment when they demonstrate

deliberate indifference to a prisoner’s serious medical needs,

constituting an unnecessary and wanton infliction of pain.

Wilson v. Seiter,

(1991). A prison official

acts with deliberate indifference “only if he knows that inmates

face a substantial risk of serious harm and disregards that risk

by failing to take reasonable measures to abate it.” Farmer v.

Brennan,

(1994); see Reeves v. Collins,

(5th Cir. 1994) (applying Farmer to a denial-of-

medical-care claim).

A delay in medical care violates the Eighth Amendment only

if it is due to deliberate indifference and the delay results in

substantial harm. Mendoza v. Lynaugh,

(5th

Cir. 1993). A prisoner’s disagreement with his medical treatment

is not sufficient to state a claim under § 1983. Varnado v.

Lynaugh,

(5th Cir. 1991).

The district court did not err in dismissing McQueen’s suit

as frivolous or for failure to state a claim. The facts alleged

in the complaint do not establish the denial of medical treatment

but, as the district court determined, reveal only McQueen’s

dissatisfaction with the treatment offered him, extraction of his

injured teeth versus more expensive restorative treatment, which No. 02-10553 -3-

is insufficient to state a claim under § 1983. See id. McQueen

has no right to the treatment of his choice. Cf. id. Moreover,

the complaint makes clear that McQueen’s failure to receive the

more expensive treatment is due to his own neglect and inability

to care for his teeth, not to any deliberate indifference by the

defendants.

To the extent that McQueen contends that he suffered a delay

in treatment between August 1999 and January 2000, his claim

fails because he has not alleged any resulting harm. See

Mendoza,

. Additionally, his own allegations

establish that he was warned at his first visit in June 1999 that

he would receive no further treatment until enough time had

passed to enable the dental department to determine whether his

injured teeth would be viable or die. McQueen’s contention that

prison officials were somehow deliberately indifferent to his

medical needs by failing to advise him that extraction was an

alternative treatment option until August 2000 is without merit

given that he has never chosen to avail himself of that option.

Inasmuch as McQueen contends that he continues to suffer

pain, the district court correctly determined that his suffering

is the result of his own actions, the inability to pass the

plaque index test and his choice to decline the offered

alternative treatment of extraction. McQueen has abandoned any

challenge to the finding that his pain is the result of his own

choice by failing to brief it. See Brinkmann v. Dallas County No. 02-10553 -4-

Deputy Sheriff Abner,

(5th Cir. 1987); Yohey v.

Collins,

(5th Cir. 1993).

McQueen’s appeal is without arguable merit, is frivolous,

and is therefore DISMISSED. See Howard v. King,

(5th Cir. 1983); 5TH CIR. R. 42.2. McQueen is CAUTIONED

that the pursuit of any future frivolous appeals may result in

the imposition of sanctions.

APPEAL DISMISSED; SANCTIONS WARNING ISSUED.