Kadlec v. Garcia, et al

*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opinion should not be published and is not precedent except under the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.
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,

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2
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

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