Strhan v. Scott

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 23, 2003
• Docket: 02-11030
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS February 19, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-11030 Conference Calendar

LARRY GENE STRHAN,

Plaintiff-Appellant,

versus

WAYNE SCOTT, Director; STUART D. WILLIAMS, Manager of Clements Unit Shoe Factory; JOHN BAINES, RN, Director of Nurses,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:01-CV-54 --------------------

Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Larry Gene Strhan, Texas state prisoner number 628985, has

appealed the district court’s judgment dismissing his civil

rights complaint as frivolous. Strhan contends that Stuart D.

Williams, a Shoe Factory Manager at the Clements Unit of the

Texas Department of Criminal Justice, Institutional Division,

refused to provide him with safety devices or protective gear to

protect him from exposure to polyvinyl chloride (“PVC”). The

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-11030 -2-

record reflects that conditions in the shoe factory were

consistent with those found in private industry and did not

violate the Eighth Amendment. See Jackson v. Cain, 864 F.2d

1235, 1245 (5th Cir. 1989); see Sampson v. King, 693 F.2d 566,

569 (5th Cir. 1982). Strhan cannot show that Williams knowingly

exposed him to conditions creating a substantial risk of serious

harm. See Farmer v. Brennan, 511 U.S. 825, 847 (1994); Bowie v.

Procunier, 808 F.2d 1142, 1143 (5th Cir. 1987). Strhan contends

also that John Baines, Director of Nurses at the Clements Unit

Infirmary, had refused to provide treatment for nerve damage

which he contends was caused by exposure to PVC. Strhan has not

shown that Baines acted with deliberate indifference to his

serious medical needs. See Wilson v. Seiter, 501 U.S. 294,

302-03 (1991).

Because the appeal is frivolous, it is DISMISSED. See

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.

R. 42.2. We caution Strhan that the dismissal of this appeal as

frivolous and the dismissal of the complaint as frivolous by the

district court both count as a strike for purposes of 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996).

APPEAL DISMISSED.