IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60331
Conference Calendar
GABRIEL MCDOWELL,
Plaintiff-Appellant,
versus
HANCOCK COUNTY JAIL, Etc.; ET AL.,
Defendants,
GERALD NECAISE, Sheriff;
DAVE JOHNSON, Sergeant,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:99-CV-569-RG
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August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Gabriel McDowell, now Mississippi inmate # 37862, appeals
from the dismissal of his action under 42 U.S.C. § 1983.
McDowell alleged that after a slip and fall at the Hancock County
Jail, prison officials Dave Johnson and Gerald Necaise denied his
requests for medical attention. McDowell also complained about
prison conditions that allegedly caused his fall.
*
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that this opinion should not be published and is not precedent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. 01-60331
-2-
McDowell has filed a motion to supplement the record. “A
court of appeals will not ordinarily enlarge the record on appeal
to include material not before the district court.” Kemlon
Prods. & Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir.
1981). The motion is DENIED. McDowell also moves for the
appointment of counsel and seeks leave to amend his complaint.
These requests are DENIED AS MOOT.
McDowell argues that the magistrate judge erred in
dismissing his complaint because he alleged facts sufficient to
establish that Johnson and Necaise acted under the color of state
law when they denied his request for medical attention. The
failure to provide medical care results in liability “if the
plaintiff can show that a state official acted with deliberate
indifference to a substantial risk of serious medical harm and
that injuries resulted.” Wagner v. Bay City, Texas, 227 F.3d
316, 324 (5th Cir. 2000). McDowell’s factual allegations do not
suggest that either Johnson or Necaise was deliberately
indifferent to a substantial risk of harm, and McDowell likewise
does not allege that injury resulted from their delay in
obtaining medical treatment. He has thus failed to state a claim
against these defendants.
McDowell’s original brief makes no argument that the
district court erred in dismissing his claim against the Hancock
County Jail. The appellant’s brief must contain an argument,
which in turn must contain his “contentions and the reasons for
No. 01-60331
-3-
them, with citations to the authorities and parts of the record
on which the appellant relies.” FED. R. APP. P. 28 (a)(9); see
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Although
this court applies less stringent standards to pro se litigants
than to parties represented by counsel and liberally construes
their briefs, pro se parties must still brief the issues and
reasonably comply with the requirements of FED. R. APP. P. 28.
See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
McDowell’s appeal is without arguable merit and is
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 dismissal of McDowell’s complaint for failure to state a
claim counts as a “strike” pursuant to 28 U.S.C. § 1915(g), as
does the dismissal of this appeal. See Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996). The dismissal as frivolous of a
previous civil-rights complaint filed by McDowell also counts as
a strike, as does this court’s dismissal as frivolous of
McDowell’s appeal in the previous matter. See id.; McDowell v.
Hancock County Med. Univ., No. 96-60364 (5th Cir. Oct. 24,
1996)(unpublished). Because McDowell has accumulated at least
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).
No. 01-60331
-4-
DISMISSED; THREE-STRIKES BAR IMPOSED; MOTION TO SUPPLEMENT
THE RECORD DENIED; MOTION FOR APPOINTMENT OF COUNSEL DENIED AS
MOOT; MOTION FOR LEAVE TO AMEND THE COMPLAINT DENIED AS MOOT.