United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 19, 2007
Charles R. Fulbruge III
Clerk
No. 06-10578
Conference Calendar
LEROY HARRIS, JR.,
Plaintiff-Appellant,
versus
BOBBY ARNOLD; JULITO P. UY; JOE NUNN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:05-CV-131
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Leroy Harris, Jr., Texas prisoner # 580009, appeals the
dismissal of his civil rights complaint against officials of the
Texas Department of Criminal Justice and a physician as frivolous
and for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)
1915A, 1997e(c)(1). Harris fails to show that the district court
erred when it rejected his claim that his Eighth Amendment rights
were violated when he was ordered to work with an axe in the
rain. See Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989).
He also fails to show that medical treatment was delayed in
*
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this opinion should not be published and is not precedent except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. 06-10578
-2-
violation of the Eighth Amendment. See Mendoza v. Lynaugh,
989 F.2d 191, 195 (5th Cir. 1993); Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991). The district court’s dismissal is
affirmed.
This court’s affirmance of the district court’s dismissal of
Harris’s complaint as frivolous and for failure to state a claim
counts as a strike for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Harris
is warned that if he accumulates three strikes under § 1915(g),
he will not be able to 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 § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.