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

                                                                            FILED
                                                                          October 5, 2007
                                     No. 06-50459
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

LYNDON HALE

                                                  Plaintiff-Appellant

v.

MICHAEL W MCLEAN, JR, Correctional Officer III

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:05-CV-97


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Lyndon Hale, Texas prisoner # 1219752, has filed a motion for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s judgment
dismissing his 42 U.S.C. § 1983 suit and granting the defendant’s summary
judgment motion. By moving for IFP, Hale is challenging the district court’s
certification that his appeal was not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-50459

      Hale argues that it was improper for the district court to rely on the Merck
Manual, a medical publication, which was outside of the summary judgment
record, to determine that his testicular pain was caused by a bacterial infection
as opposed to the actions of Texas Department of Criminal Justice Officer
Michael McLean, Jr. He also argues that there are genuine issues of material
fact with respect to his Eighth Amendment claim against McLean.
      We review a district court’s rulings on a Fed. R. Civ. P. 12(b)(6) motion and
on a motion for summary judgment de novo. Crowe v. Henry, 115 F.3d 294, 296
(5th Cir. 1997); Jackson v. City of Beaumont Police Dept., 958 F.2d 616, 618
(5th Cir. 1992). In this case, summary judgment was appropriate because the
summary-judgment evidence demonstrated that McLean was throwing johnny
sacks at the inmates to wake them up. While McLean’s actions were arguably
inappropriate and possibly even negligent, there was no evidence that he was
motivated by malice and intended to specifically hit Hale in the testicles to cause
harm. McLean’s actions in throwing the johnny sacks to wake up the inmates
is not the type of force that is “repugnant to the conscience of mankind.” See
Baldwin v. Stalder, 137 F.3d at 839, 841 (5th Cir. 1998). Accordingly, McLean
was entitled to qualified immunity, and the district court’s grant of summary
judgment in McLean’s favor on the excessive-force claim was not error. Given
the foregoing, it is not necessary for us to address Hale’s argument that the
district court erred in relying on a medical publication outside of the summary
judgment record to dismiss his § 1983 suit.
      Hale has failed to show that his appeal involves “‘legal points arguable on
their merits (and therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983). His motion to proceed IFP on appeal is therefore denied, and the
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24.
      Our dismissal of this appeal as frivolous counts as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.
1996). Hale is warned that if he accumulates three strikes, he will be barred

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                                No. 06-50459

under § 1915(g) from bringing a civil action or an appeal from a judgment in a
civil action or proceeding under § 1915 unless he is under imminent danger of
serious physical injury.
      MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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