Sims vs. Smith, (5th Cir. 1999)
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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-11481 Conference Calendar CLIFFORD D. SIMS, Plaintiff-Appellant, versus CHARLIE SMITH, Sheriff, Lynn County Jail; MIGUEL REYNA, Jail Administrator, Lynn County Jail; JASON McMILLAN, Jailer, Lynn County Jail; BOBBY JORDAN, Ex-Jail Administrator, Lynn County Jail, Defendants-Appellees. Appeal from the United States District Court for the Northern District of Texas USDC No. 5:98-CV-191 October 20, 1999 Before JONES, WIENER, and STEWART, Circuit Judges.
PER CURIAM: * Clifford D. Sims, Texas prisoner #830977, appeals from the dismissal of his civil rights action as frivolous. Sims contends that his constitutional rights were violated because he was left alone with another prisoner; that his rights were violated by his punishment after he drank three beers on work release while a prisoner who possessed marijuana received a lesser penalty; that a jailer deprived him of adequate medical care by depriving him of skin cream for four hours; that the conditions of his confinement were unconstitutional because the dayroom toilet was backed up with feces for eight days; and that jail policy unconstitutionally deprived him and other prisoners of medical care on the basis of indigency.
Sims did not allege any physical injury arising from being left alone with the other prisoner, being deprived of skin cream for four hours, or being exposed to feces in the dayroom toilet.
Sims stated no nonfrivolous claims for damages regarding those incidents. 42 U.S.C. § 1997e(e). Regarding his punishment for drinking beer while on work release, Sims has not shown that his jailers distinguished between two relevant groups or that any fundamental right was at stake, as he must do to show an Equal Protection Clause violation. Lavernia v. Lynaugh , 845 F.2d 493, 496 (5th Cir. 1988). Finally, Sims has failed to brief his contention that jail policy deprived him and other prisoners of medical care on the basis of indigency. Brinkmann v. Dallas County Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987).
Sims§ 1915(g). We caution Sims that once he accumulates three strikes, he may not proceed in forma pauperis (IFP) in any civil action or appeal filed while he is in prison unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; WARNING ISSUED.
No. 98-11481
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This document cites
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1915 - Sec. 1915. Proceedings in forma pauperis
- US Code - Title 42: The Public Health and Welfare - 42 USC 1997 - Sec. 1997. Definitions
- U.S. Court of Appeals for the Fifth Circuit - Reginald R. Brinkmann, Jr., Plaintiff-Appellant, v. Dallas County Deputy Sheriff Abner, Et Al., Defendants-Appellees. Nos. 86-1326, 86-1458. Summary Calendar., 813 F.2d 744 (5th Cir. 1987)
- U.S. Court of Appeals for the Fifth Circuit - Carlos Lavernia, Petitioner-Appellant, v. James A. Lynaugh, Director, Texas Department of Corrections, Respondent-Appellee. No. 87-1918. Summary Calendar., 845 F.2d 493 (5th Cir. 1988)
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