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

                                                 FILED
                                                                            May 15, 2009
                                     No. 08-10862
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

GARY COOKS

                                                   Plaintiff-Appellant

v.

CHRISTINA MELTON CRAIN; BECKY PRICE; BRUCE ZELLER

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:08-CV-70


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Gary Cooks, Texas prisoner # 1249204, brought suit claiming that being
transported in vehicles that lacked seatbelts was so unsafe as to violate his
constitutional rights. His jurisdictional vehicle was 42 U.S.C. § 1983. The
district court dismissed the suit as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
Cooks’s request to proceed in forma pauperis (IFP) on appeal was denied. We
DENY the IFP motion and DISMISS this appeal as frivolous.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10862

      Cooks argues that the district court abused its discretion by dismissing his
claim concerning unsafe transportation. He relies on a precedent in which an
inmate was exposed to the smoke from other inmates’ cigarettes.           Helling v.
McKinney, 509 U.S. 25, 28 (1993).         In that case, the inmate’s argument
concerned present and continuing harm. It was not an argument, as here, based
on the need for an extra measure of safety against the possibility of harm.
Indeed, what Cooks seeks are safety devices – seatbelts in large passenger vans
– which he has not shown are required by state or federal law. The district court
considered this argument and found no violation of a federally protected right
by the absence of seatbelts.
      Cooks also contends that officials infringed his rights by failing to comply
with a Texas statute that requires policies to be adopted for the safe
transportation of inmates. T EX. G OV’T C ODE § 500.006(a). He has not shown
a failure to adopt policies but only a disagreement with the ones adopted.
      At most, these general allegations raise questions about whether prison
authorities might have reasons to reconsider some of their policies and practices.
He has not shown any infringement of a constitutional right, nor even any
violation of statute.
      Accordingly, Cooks has not shown that the district court’s certification that
an appeal would not be taken in good faith was incorrect. This appeal is without
arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983). Accordingly, Cooks’s request for IFP is denied, and his appeal
is dismissed. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5 TH
C IR. R. 42.2. Cooks is cautioned that the district court’s dismissal of his suit and
our dismissal of the appeal as frivolous both count as strikes under Section
1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Cooks
is also cautioned that if he accumulates three strikes, he may not proceed IFP
in any civil action or appeal filed while he is incarcerated or detained in any



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facility unless he “is under imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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