                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 22, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 02-20944
                        Conference Calendar



BOBBY JOE CUNNINGHAM,

                                    Plaintiff-Appellant,

versus

HENSZEL, Warden; GOODWELL, Asst. Warden;
DR. ALAN ZOUD; LLOY ASCHBERGER, P.A.; C.O. BROWN,

                                    Defendants-Appellees.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. H-01-CV-4355
                        --------------------

Before DAVIS, BARKSDALE, AND STEWART, Circuit Judges.

PER CURIAM:*

     Bobby Joe Cunningham, Texas prisoner # 1038645, appeals the

dismissal of his civil rights complaint for failure to state a

claim.   He argues that the defendants were deliberately

indifferent to his asthma condition by forcing him to work in

extreme temperatures in the Byrd Unit kitchen.

     Where prison officials knowingly put a prisoner on a work

duty which they know will “significantly aggravate his serious


     *
        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that this opinion should not be published and is not precedent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. 02-20944
                                 -2-

physical ailment,” such a decision constitutes deliberate

indifference.    Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.

1989).   Cunningham, however, does not challenge the district

court’s finding that there was no “significant aggravation” of

his asthma.    That finding is therefore unreviewable, see Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993), and, consequently,

Cunningham has failed to demonstrate that the 28 U.S.C.

§ 1915(e)(2)(B)(ii) dismissal was erroneous.    Additionally,

Cunningham’s argument that Officer C.O. Brown violated his Eighth

Amendment rights is frivolous because Cunningham testified that

he did not unload the potato truck.

     Cunningham’s appeal is without arguable merit and should be

dismissed.    See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983).    Cunningham is informed that the

dismissal of this appeal as frivolous counts as a strike for

purposes of 28 U.S.C. § 1915(g), in addition to the strike for

the district court’s dismissal.    See Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996).    We caution Cunningham that once

he accumulates three strikes, he may not bring in forma pauperis

a 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 28 U.S.C. § 1915(g).   Cunningham

should review any pending appeals and withdraw any that are

frivolous.

     APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.
