IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30624
Conference Calendar
EDWARD CHYRON FRANK,
Plaintiff-Appellant,
versus
RICHARD L. STALDER; MICKEY L. HUBERT;
SHARON RUSH; BRENDA SMILEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-190
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October 26, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Edward Chyron Frank, prisoner #73820, appeals the district
court’s dismissal of his pro se and in forma pauperis (IFP) civil
rights complaint wherein he alleged that he was subjected to
cruel and unusual punishment because he was given a pair of used
work boots, and that he was denied due process when he was
disciplined for refusing to wear the boots. Frank also alleged
that he was denied access to the courts because the prison
*
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that this opinion should not be published and is not precedent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. 01-30624
-2-
library did not have “essential” law books and because prison
officials refused to give him certain supplies.
Frank has failed to demonstrate that the risk posed by the
sanitized boots was “so grave that it violates contemporary
standards of decency to expose anyone unwillingly to such a
risk.” Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995).
Accordingly, Frank has failed to state an Eighth Amendment
violation. See Farmer v. Brennan, 511 U.S. 825, 847 (1994).
With respect to Frank’s due process claim, Frank has not shown
that his conviction in the disciplinary proceeding has been
overturned, and, therefore, his claim is not cognizable under
§ 1983. See Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998)
(en banc). Frank’s allegations regarding the denial of access to
the courts are insufficient to support such a claim. See Lewis
v. Casey, 518 U.S. 343, 351 (1996); Eason v. Thaler, 73 F.3d
1322, 1328 (5th Cir. 1996).
The judgment of the district court is AFFIRMED. Talib v.
Gilley, 138 F.3d 211, 213 (5th Cir. 1998); 28 U.S.C.
§ 1915(e)(2)(B)(i). We caution Frank that our affirmance of the
judgment of dismissal counts as a “strike” for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87
(5th Cir. 1996).
AFFIRMED; SANCTIONS WARNING ISSUED.