United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2003
Charles R. Fulbruge III
Clerk
No. 03-30322
Conference Calendar
EARL ETIENNE,
Plaintiff-Appellant,
versus
O. KENT ANDREWS; WACKENHUT CORRECTIONAL CORP.; UNKNOWN NURSE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CV-1999
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Earl Etienne, Louisiana state prisoner # 226474, appeals the
dismissal of his pro se, in forma pauperis 42 U.S.C. § 1983
complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Etienne’s complaint lacks an arguable basis in law; the facts
alleged cannot establish deliberate indifference to his medical
needs. See Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir.
1993); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
*
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that this opinion should not be published and is not precedent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. 03-30322
-2-
The appeal is frivolous and is therefore DISMISSED. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
The dismissal of this appeal and the district court’s
dismissal each count as a “strike” for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Etienne is WARNED that if he accumulates 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).
APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED.