United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 9, 2003 Charles R. Fulbruge III 02-30994 Clerk Summary Calendar

ERIC W. WILLIAMS, Plaintiff-Appellant, versus JOANN BRINKAN, Individually and in her official capacity; PAM GIVINS, Individually and in her official capacity; ALTON JACK, Individually, Defendants-Appellees.

Appeal from the United States District Court for the Western District of Louisiana (01-CV-1985)

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:* Eric W. Williams, Louisiana inmate #117598, proceeding pro se and in forma pauperis (“IFP”), appeals the dismissal of his 42 U.S.C. § 1983 complaint. Williams claimed defendants violated his rights under the Eighth Amendment because they did not provide a timely eye examination and delayed in transferring him to a unit where he could receive such treatment. Williams contends the district court erred by basing the dismissal of his complaint on

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the fact that Williams obtained an eye examination and a prescription for eyeglasses.

We review a dismissal under FED. R. CIV. P. 12(b)(6) de novo.

Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). The Eighth Amendment’s prohibition against “cruel and unusual punishment” protects an inmate from improper medical care only if the care is “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference is shown by “facts clearly evincing ‘wanton’ actions” by the defendants. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).

Williams’ complaint demonstrates, at most, negligence and disagreement with the medical care that he received. Unsuccessful medical treatment, negligence, neglect, and medical malpractice do not establish an Eighth Amendment violation. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

Williams’ appeal is without arguable merit and is frivolous.

It is therefore DISMISSED. 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The dismissal of this appeal and the district court’s dismissal of Williams’ complaint count as strikes under the Prison Litigation Reform Act. Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Williams is WARNED that if he accumulates three “strikes” under 28 U.S.C. § 1915(g) he will not be able to proceed in forma pauperis 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. 28 U.S.C. § 1915(g).

APPEAL DISMISSED, SANCTION WARNING ISSUED