     Case: 10-50618 Document: 00511360099 Page: 1 Date Filed: 01/25/2011




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

                                                 FILED
                                                                          January 25, 2011
                                     No. 10-50618
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

LESTER B. THOMPSON, JR.,

                                                   Plaintiff - Appellant

v.

ANICETO DE LA PUERTA DOMINGUEZ; MELVIN WRIGHT; DONNA
COALSTON,

                                                   Defendants - Appellees


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:08-CV-218


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Lester B. Thompson, Jr., Texas prisoner # 766928, moves for leave to
appeal in forma pauperis (IFP) from the dismissal of his 42 U.S.C. § 1983 action
for failure to state a claim on which relief may be granted. Thompson’s motion
to proceed IFP is construed as a challenge to the district court’s certification that
the appeal is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997);
28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). This court asks only whether the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50618 Document: 00511360099 Page: 2 Date Filed: 01/25/2011

                                 No. 10-50618

appeal involves legal points that are not frivolous. Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983).
      Thompson alleges that the defendants were deliberately indifferent to his
serious medical needs because they knew he was in pain and at risk of serious
injury because of an ankle injury but allowed him to be removed from work
restriction. A plaintiff states a cause of action under the Eighth Amendment
when he alleges that a defendant has, with deliberate indifference, exposed him
to a sufficiently substantial risk of serious damage to his future health.
Burleson v. Texas Dep’t of Criminal Justice, 393 F.3d 577, 589 (5th Cir. 2004).
“Deliberate indifference encompasses only unnecessary and wanton infliction of
pain repugnant to the conscience of mankind.” McCormick v. Stalder, 105 F.3d
1059, 1061 (5th Cir. 1997) (citation omitted). Nothing in Thompson’s allegations,
either in the district court or on appeal, suggests that the prison officials
wantonly inflicted pain on him in their response to his injury.
      Thompson has failed to show that his proposed appeal involves any
nonfrivolous issue. See Howard, 707 F.2d at 220. Accordingly, his IFP motion
is denied. See Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous, see
Howard, 707 F.2d at 219-20, his appeal is dismissed. See 5th Cir. R. 42.2.
      The dismissal in the district court and the dismissal of this appeal both
count as strikes under Section 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 385-87 (5th Cir. 1996). Thompson is warned that if he accumulates a third
strike under Section 1915(g) he will not be allowed to proceed IFP in any civil
action while incarcerated or detained unless he is in imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS;
SANCTION WARNING ISSUED.




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