Case: 09-30736 Document: 00511043291 Page: 1 Date Filed: 03/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 5, 2010
No. 09-30736
Summary Calendar Charles R. Fulbruge III
Clerk
PETER ROY ALFRED, JR.,
Plaintiff-Appellant
v.
WINN CORRECTIONAL CENTER; TIM WILKINSON; ANGIE MARTIN; TIM
MORGAN; LAURA HOWARD; ALFONZO PACHECO; PAT THOMAS;
L COLEMAN; M GASKILL; UNKNOWN INSURANCE CO; CORRECTIONS
CORPORATION OF AMERICA,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:07-CV-1785
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Peter Roy Alfred, Jr., Louisiana prisoner # 315023, moves for leave to
proceed in forma pauperis (IFP) on appeal following the district court’s denial of
his IFP motion and certification that his appeal was not taken in good faith. He
seeks to appeal the dismissal of his 42 U.S.C. § 1983 suit alleging that the
defendants, inter alia, violated his Eighth Amendment rights by denying him 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-30736 Document: 00511043291 Page: 2 Date Filed: 03/05/2010
No. 09-30736
continuous positive airway pressure machine (CPAP). Alfred’s IFP motion
challenging the certification decision “must be directed solely to the trial court’s
reasons for the certification decision.” Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). Although this court previously imposed a 28 U.S.C. § 1915(g) bar
upon Alfred in rejecting a similar case against different defendants, see Alfred
v. Forcht Wade Corr. Ctr., 2009 WL 3786260, at *1-2 (5th Cir. Nov. 12, 2009), the
instant appeal was filed before the bar was imposed.
Because Alfred has not challenged the district court’s dismissal of his
claims against the Corrections Corporation of America, Winn Correctional
Center, Tim Wilkinson, Angie Martin, and Tim Morgan, he has abandoned his
claims against these defendants. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Further, he challenges only the
district court’s dismissal of his Eighth Amendment claims against the remaining
defendants; accordingly, he has abandoned all but those Eighth Amendment
claims. See Brinkmann, 813 F.2d at 748.
The record shows that Alfred received medical attention for his sleep
apnea following his transfer to Winn Correctional Center and that the sleep
apnea never posed a serious risk to Alfred’s health. See Norton v. Dimazana,
122 F.3d 286, 291-92 (5th Cir. 1997). Alfred has been receiving CPAP
treatments since May 2008.
Alfred’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). He continues to be barred from
proceeding IFP 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). He should review any pending appeals and withdraw any
that are frivolous.
Alfred’s motion to proceed IFP is DENIED, and his appeal is DISMISSED
as frivolous pursuant to 5 TH C IR. R. 42.2.
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