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

                                                FILED
                                                                   October 16, 2009
                                 No. 09-40286
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

JEREMY LEE CONLIN,

                                             Plaintiff-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; TEXAS CORRECTIONAL
INDUSTRIES, a Division of TDCJ-CID Logistics Division; BRAD LIVINGSTON,
Individually and in his Official Capacity as Executive Director TDCJ-CID,

                                             Defendants-Appellees


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 1:08-CV-175


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
      Jeremy Lee Conlin, Texas prisoner # 01293724, appeals the dismissal,
pursuant to 28 U.S.C. § 1915(e)(2)(B), as frivolous and for failure to state a claim
of his 42 U.S.C. § 1983 civil rights lawsuit asserting a violation of his Eighth
Amendment rights as a result of having to sleep on an unsupportive mattress.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                     No. 09-40286

The district court’s dismissal is reviewed de novo, accepting all of Conlin’s
allegations as true. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      Conlin contends that the dismissal of his complaint was error because he
has stated a claim under the Eighth Amendment. He also seeks to raise, for the
first time on appeal, new state-law tort claims for negligence and products
liability, as well as a new claim for state-created danger under the Eighth
Amendment. These newly raised claims will not be considered. Stewart Glass
& Mirror, Inc. v. U.S. Auto Glass Discount Centers, Inc., 200 F.3d 307, 316-17
(5th Cir. 2000); see also Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999).
      An inmate must satisfy two requirements, consisting of an objective and
subjective component, in order to establish a conditions-of-confinement claim
under the Eighth Amendment. Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir.
1998). “[T]he deprivation alleged must be, objectively, sufficiently serious; a
prison official’s act or omission must result in the denial of the minimal civilized
measures of life’s necessities.” Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir.
1999) (internal quotation marks and citation omitted). “[E]xtreme deprivations
are   required”    in   order   to    meet    the   objective   component     of   a
conditions-of-confinement claim. Davis, 157 F.3d at 1006 (internal quotation
marks and citation omitted). In order to satisfy the subjective component, the
prisoner must establish that the defendants “acted with deliberate indifference
to his conditions of confinement.” Harper v. Showers, 174 F.3d 716, 720 (5th Cir.
1999) (footnote omitted).
      Conlin’s Eighth Amendment claim was properly dismissed because he did
not allege facts establishing the objective component of a conditions-of-
confinement claim.      Although he argues that the loss of sleep he alleged
demonstrated a deprivation of a basic human need, Conlin has not shown an
egregious deprivation of a minimal life necessity that was so base or inhumane
as to give rise to a constitutional violation. See Palmer, 193 F.3d at 352; see also

                                          2
                                  No. 09-40286

Novak v. Beto, 453 F.2d 661, 665-66 (5th Cir. 1971). Instead, Conlin complains
of mere discomfort, which is insufficient. See Rhodes v. Chapman, 452 U.S. 337,
349 (1981). The district court’s judgment is affirmed.
      The district court’s dismissal of the instant lawsuit 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). Conlin has one previous strike. See Conlin v. Lange, No.
07-20164 (5th Cir. 2007) (unpublished). Accordingly, Conlin is cautioned that
if he accumulates three strikes under § 1915(g), he may not 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).
      AFFIRMED; THREE-STRIKES WARNING ISSUED.




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