Centofanti v. Halliburton

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-11191 Conference Calendar __________________

JOSEPH CENTOFANTI,

Plaintiff-Appellant,

versus

LYLE G. HALLIBURTON,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 2:95-CV-219 - - - - - - - - - - April 17, 1996 Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Joseph Centofanti appeals the dismissal of his 42 U.S.C.

§ 1983 complaint as frivolous pursuant to 28 U.S.C. § 1915(d).

Centofanti alleges that Lyle Halliburton, a guard in the Texas

Department of Criminal Justice, violated his constitutional

rights because Halliburton would not allow Centofanti to wear a

back brace on a bus ride to Galveston Hospital although

Centofanti had permission to wear the brace only during work.

A complaint filed in forma pauperis (IFP) may be dismissed

if the complaint is frivolous. 28 U.S.C. § 1915(d); Eason v.

Thaler, 14 F.3d 8, 9 (5th Cir. 1994). "An action is frivolous if

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-11191 -2-

it lacks an arguable basis either in law or in fact." Graves v.

Hampton, 1 F.3d 315, 317 (5th Cir. 1993) (quotations omitted). A

§ 1915(d) dismissal is reviewed for an abuse of discretion. Id.

"[A] prison official cannot be found liable under the Eighth

Amendment . . . unless the official knows of and disregards an

excessive risk to inmate health or safety; the official must both

be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw

the inference." Farmer v. Brennan, 114 S. Ct. 1970, 1979 (1994).

The dismissal of Centofanti's complaint was not an abuse of

discretion. Centofanti's appeal is DISMISSED as frivolous. See

5th Cir. R. 42.2.

We caution Centofanti that any additional frivolous appeals

filed by him will invite the imposition of sanctions. To avoid

sanctions, Centofanti is further cautioned to review any pending

appeals to ensure that they do not raise arguments that are

frivolous because they have been previously decided by this

court.

APPEAL DISMISSED; SANCTION WARNING ISSUED.