United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-20944
Conference Calendar
BOBBY JOE CUNNINGHAM,
Plaintiff-Appellant,
versus
HENSZEL, Warden; GOODWELL, Asst. Warden;
DR. ALAN ZOUD; LLOY ASCHBERGER, P.A.; C.O. BROWN,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-4355
--------------------
Before DAVIS, BARKSDALE, AND STEWART, Circuit Judges.
PER CURIAM:*
Bobby Joe Cunningham, Texas prisoner # 1038645, appeals the
dismissal of his civil rights complaint for failure to state a
claim. He argues that the defendants were deliberately
indifferent to his asthma condition by forcing him to work in
extreme temperatures in the Byrd Unit kitchen.
Where prison officials knowingly put a prisoner on a work
duty which they know will “significantly aggravate his serious
*
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that this opinion should not be published and is not precedent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. 02-20944
-2-
physical ailment,” such a decision constitutes deliberate
indifference. Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.
1989). Cunningham, however, does not challenge the district
court’s finding that there was no “significant aggravation” of
his asthma. That finding is therefore unreviewable, see Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993), and, consequently,
Cunningham has failed to demonstrate that the 28 U.S.C.
§ 1915(e)(2)(B)(ii) dismissal was erroneous. Additionally,
Cunningham’s argument that Officer C.O. Brown violated his Eighth
Amendment rights is frivolous because Cunningham testified that
he did not unload the potato truck.
Cunningham’s appeal is without arguable merit and should be
dismissed. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). Cunningham is informed that the
dismissal of this appeal as frivolous counts as a strike for
purposes of 28 U.S.C. § 1915(g), in addition to the strike for
the district court’s dismissal. See Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996). We caution Cunningham that once
he accumulates three strikes, he may not bring in forma pauperis
a 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). Cunningham
should review any pending appeals and withdraw any that are
frivolous.
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.