IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40971
Summary Calendar
CHARLES LEE COOPER,
Plaintiff-Appellant,
versus
NOWARD BELL, JR.; SAMMY BROWN, Sergeant; RANDAL E. SMIDT;
JOSEPH RANDOL; MEDICAL STAFF AT STEVENSON UNIT; CRYSTAL IRVIN;
SUSAN SCHUMACHER,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. V-01-CV-108
--------------------
November 1, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Charles Lee Cooper, Texas prisoner # 1005157, has filed
an application for leave to proceed in forma pauperis (IFP) on
appeal, following the district court's dismissal as frivolous of
his civil rights complaint. By moving for IFP, Cooper is
challenging the district court's certification that IFP status
*
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this opinion should not be published and is not precedent except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. 02-40971
-2-
should not be granted on appeal because his appeal is not taken in
good faith. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Cooper’s claim is that his injury due to an unsafe work
assignment and the related medical care constituted cruel and
unusual punishment prohibited by the Eighth Amendment. See Farmer
v. Brennan, 511 U.S. 825, 847 (1994). As Cooper’s claims are based
on negligence, they cannot support a § 1983 action and the district
court did not err in dismissing it as frivolous. Daniels v.
Williams, 474 U.S. 327, 332-36 (1986); Berry v. Brady, 192 F.3d
504, 507 (5th Cir. 1999).
Cooper's appeal is without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, we uphold the district court's order
certifying that the appeal is not taken in good faith and denying
Cooper IFP status on appeal, we deny the motion for leave to
proceed IFP, and we DISMISS Cooper's appeal as frivolous. Baugh,
117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
The district court's dismissal of Cooper's action and our
dismissal of his appeal count as two strikes for purposes of
28 U.S.C. § 1915(g). Cooper is warned that should he accumulate
three strikes, for purposes of 28 U.S.C. § 1915(g), he will be
unable to proceed IFP in any civil action or appeal unless he is
under imminent danger of serious physical injury.
IFP DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.