IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20981
Conference Calendar
PATRICK WASHINGTON,
Plaintiff-Appellant,
versus
TOMMY THOMAS; ET AL.,
Defendants,
TOMMY THOMAS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-102
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June 18, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Patrick Washington, Texas prisoner #888936, appeals the
dismissal of his 42 U.S.C. § 1983 complaint for failure to state
a claim upon which relief may be granted.
Washington’s motion for appointment of counsel is DENIED.
Washington contends that the defendants were deliberately
indifferent to his serious medical needs by failing to provide
*
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that this opinion should not be published and is not precedent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. 00-20981
-2-
him with a CPAP (continuous positive airway pressure) machine for
his sleep apnea. Neither his complaint nor his Spears hearing
testimony reflects that Washington suffered substantial harm as a
result of not receiving CPAP treatment. Thus, whatever
deficiencies there may have been in Williams’s treatment, if any,
certainly do not rise to the level of establishing deliberate
indifference on the part of the defendants. See Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Accordingly, the
district court did not err in dismissing his complaint for
failure to state a claim.
Washington’s appeal is without merit and therefore
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2. The district court’s dismissal of the present
case and our dismissal of this appeal count as two strikes
against Washington for purposes of 28 U.S.C. § 1915(g). We
caution Washington that once he accumulates three strikes, he may
not proceed in forma pauperis in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.