IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40915
Summary Calendar
LEWIS HARPER,
Plaintiff-Appellant,
versus
DAVID DOUGHTY, ADJETEY K. LOMO, DR.; JOHN STENNER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-98-CV-513
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March 2, 2001
Before GARWOOD, DAVIS and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Lewis Harper, Texas prisoner #415488, appeals from the grant
of summary judgment for the defendants and the dismissal of his
42 U.S.C. § 1983 action as frivolous. Harper contends that his
work assignment to field work despite his asthma constituted
deliberate indifference to his health.
The pleadings and the record indicated no genuine issues of
material fact regarding whether officials were deliberately
indifferent to Harper’s asthma when assigning Harper to field
work. See Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir.
*
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that this opinion should not be published and is not precedent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. 00-40915
-2-
1994); GATX Aircraft Corp. v. M/V COURTNEY LEIGH, 768 F.2d 711,
714 (5th Cir. 1985). Moreover, because the evidence established
that Harper’s mild asthma was not significantly exacerbated by
his work assignment, the district court did not abuse its
discretion by dismissing Harper’s action as frivolous. See
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); Mendoza
v. Lynaugh, 989 F.2d 191, 194 (5th Cir. 1993).
The dismissal of Harper’s action as frivolous by the
district court counts as a “strike” against Harper for purposes
of 28 U.S.C. § 1915(g). Once Harper accumulates three “strikes,”
he may proceed in forma pauperis (IFP) in civil actions or
appeals while imprisoned only if he “is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g).
AFFIRMED; SANCTIONS WARNING ISSUED.