IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60178
Conference Calendar
ROBERT E. MACK,
Plaintiff-Appellant,
versus
ROBERT JOHNSON, Commissioner; JOHN BEARRY,
Medical Director, Unit 42; EMMITT SPARKMAN,
Superintendent; UNKNOWN THAXTON,
Maintenance Supervisor,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:02-CV-34-D-B
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August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Robert E. Mack, Mississippi prisoner # 25525, appeals from
the district court's dismissal of his civil rights complaint for
failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). Mack argues that the defendants were
deliberately indifferent to his serious medical needs and to a
*
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that this opinion should not be published and is not precedent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. 02-60178
-2-
substantial risk of harm caused by a leaky shower at his place of
incarceration.
Mack was treated for injuries sustained to his neck and back
after he slipped and fell in a puddle of water on the floor of
his cell. We conclude that Mack's complaints concerning the
medical treatment that he received fail to rise to the level of
deliberate indifference. See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991); see also Norton v. Dimazana, 122 F.3d 286,
292 (5th Cir. 1997). As for Mack's complaint that the defendants
knew about the leak in the shower but failed to repair it, we
conclude that, at most, Mack alleges a claim of negligence, which
is not actionable under 42 U.S.C. § 1983. See Daniels v.
Williams, 474 U.S. 327, 332-36 (1986); Marsh v. Jones, 53 F.3d
707, 711-12 (5th Cir. 1995). Accordingly, the district court did
not err when it dismissed Mack’s complaint for failure to state a
claim for which relief may be granted. This appeal is,
therefore, frivolous and is DISMISSED as such. See 5TH CIR.
R. 42.2; see also Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983).
The dismissal of this appeal as frivolous and the district
court's dismissal of this lawsuit as frivolous constitute two
strikes for purposes of the 28 U.S.C. § 1915(g) bar. Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). We caution Mack that
once he accumulates three strikes, he may not proceed in forma
pauperis in any civil action or appeal filed while he is
No. 02-60178
-3-
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
DISMISSED AS FRIVOLOUS; WARNING ISSUED.