     Case: 10-40954 Document: 00511454509 Page: 1 Date Filed: 04/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 22, 2011
                                     No. 10-40954
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ARTHUR LOWE,

                                                   Plaintiff-Appellant

v.

JACOB A. RICHARDSON,

                                                   Defendant-Appellee


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:10-CV-310


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Arthur Lowe, Texas prisoner # 669750, seeks leave to proceed in forma
pauperis (IFP) on appeal of the district court’s dismissal of his civil action as
frivolous and for failure to state a claim upon which relief may be granted.
By moving for leave to proceed IFP, Lowe is challenging the district court’s
certification that his appeal is not taken in good faith because it is frivolous. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);
F ED. R. A PP. P. 24(a)(5).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40954 Document: 00511454509 Page: 2 Date Filed: 04/22/2011

                                  No. 10-40954

      Lowe argues that the sack meals he was given during a lock down were too
cold to be eaten, depriving him of food in violation of the Eighth Amendment.
He contends that the sack meals violated Texas Department of Criminal Justice,
Correctional Institutions Division (TDCJ-CID) policy because they were not
wholesome and nutritious. He asserts that his weight gain, reflected by his
weight of 227 pounds after the lock down ended, does not disprove his claims
because he was weighed six days after the lock down ended, and he ate more
than he normally did during that time. Lowe maintains that the refrigerating
of the sack meals at temperatures below 40 degrees violated TDCJ-CID policy
because TDCJ-CID policy did not require that the sack meals be stored at
temperatures that low.
      Although Lowe alleged that the sack meals he received during the lock
down were so cold that they were inedible, he acknowledged that the meals were
not frozen. Furthermore, Lowe admitted that he did eat some of the cold meals
that were provided. Lowe did not allege that the sack meals were nutritionally
inadequate, only that they were too cold. As Lowe alleged only that the meals
were served too cold, not that they were nutritionally insufficient, his complaint
did not state a constitutional claim. See Eason v. Thaler, 73 F.3d 1322, 1327
(5th Cir. 1996).
      Lowe’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). The IFP motion is denied, and the
appeal is dismissed. See Baugh, 117 F.3d at 202; 5 TH C IR. R. 42.2.
      Lowe is cautioned that the dismissal of this appeal as frivolous and the
district court’s dismissal of the complaint both count as strikes under § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).              He is
cautioned that if he accumulates three strikes under § 1915(g), he will be unable
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).

                                          2
   Case: 10-40954 Document: 00511454509 Page: 3 Date Filed: 04/22/2011

                              No. 10-40954

    IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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