IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-41149 Summary Calendar

CHARLES TERRY TIDWELL,

Plaintiff-Appellant,

versus

P.A. FORTNER, Powledge Unit; H. CLAYTON, Doctor, Beto I; UNIDENTIFIED RAHI, Doctor, Luther Unit; GARY JOHNSON, Executive Director, TDCJ; OWEN MURRAY, D.O. UTMB; K.C. LOVE, Doctor, Beto I Unit,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CV-596 -------------------- February 12, 2003

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

Inmate Charles Terry Tidwell appeals in forma pauperis (IFP)

the magistrate judge’s dismissal of his

action as

frivolous for failure to state a claim. Tidwell argues that the

question of whether medical personnel had subjective knowledge of

his medical condition is a fact question and that the prison

doctors delayed and denied treatment by not referring him to

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. specialists earlier, causing him to lose his leg and hip. Tidwell

also argues that the magistrate judge’s alternate holding that he

had failed to exhaust his administrative remedies was incorrect.

We review a dismissal under 28 U.S.C. § 1915A de novo. See Ruiz v.

United States,

(5th Cir. 1998).

The Cruel and Unusual Punishment clause protects an inmate

from improper medical care, but only if the care is “sufficiently

harmful to evidence deliberate indifference to serious medical

needs.” Estelle v. Gamble,

(1976). Deliberate

indifference encompasses only unnecessary and wanton infliction of

pain repugnant to the conscience of mankind.

.

The record demonstrates that Tidwell received a considerable

amount of medical treatment, including multiple surgeries and

debridements in an effort to save his leg, rebutting his claim that

prison officials were deliberately indifferent to his serious

medical needs. See Banuelos v. McFarland,

(5th

Cir. 1995). While Tidwell no doubt disagrees with the medical

treatment he received, such disagreement does not state a claim for

deliberate indifference to his medical needs. See Norton v.

Dimazana,

(5th Cir. 1997). At most, he has

alleged an action in negligence or malpractice, which does not

state a constitutional violation. See Varnado v. Lynaugh,

(5th Cir. 1991). The magistrate judge’s judgment that

Tidwell’s suit was frivolous because he had failed to state a claim

for deliberate indifference to his serious medical needs was

2 correct. Therefore, we do not address the magistrate judge’s

alternate holding that Tidwell failed to exhaust his administrative

remedies. The judgment of the district court is

AFFIRMED.

3