     Case: 12-11055       Document: 00512182351         Page: 1     Date Filed: 03/21/2013




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

                                                                            FILED
                                                                          March 21, 2013
                                     No. 12-11055
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

RICK LEE STROBLE,

                                                  Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; JENNY L. LINDLEY, Laudry Manager III; JESUS ELIZONDO,
Laudry Captain Manager IV; RICHARD H. CASTRO, JR., Sergeant of
Corrections; ALLEN L. TURNER, Sergeant of Corrections; RICHARD G. LEAL,
Assistant Warden,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:11-CV-108


Before JONES, DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Rick Lee Stroble, Texas prisoner # 1594772, moves for leave to proceed in
forma pauperis (IFP) to appeal the dismissal of his 42 U.S.C. § 1983 complaint.
The magistrate judge certified that Stroble’s appeal was not taken in good faith
and denied him leave to proceed IFP on appeal. When a district court certifies


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 12-11055

that an appeal is frivolous and is not taken in good faith under 28 U.S.C.
§ 1915(a)(3) and Rule 24(a)(3) of the Federal Rules of Appellate Procedure, a
litigant may either pay the filing fee or challenge the district court’s certification
decision by filing a motion for leave to proceed IFP in this court. Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). If the court upholds the district court’s
certification that the appeal is not taken in good faith and the litigant persists
in the appeal, he must pay the appellate filing fee or the appeal will be dismissed
for want of prosecution. Baugh, 117 F.3d at 202. The court’s inquiry into
whether the appeal is taken in good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). If the appeal is frivolous, this
court may dismiss it sua sponte. Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
      Stroble argues that the magistrate judge erred in dismissing his claim that
Jenny L. Lindley, a corrections officer, was deliberately indifferent to his medical
needs by ordering him to work beyond his medical restrictions. A claim may be
dismissed for failure to state a claim upon which relief may be granted if,
assuming all well pleaded facts are true, the plaintiff has not stated “enough
facts to state a claim to relief that is plausible on its face.” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks and
citation excluded).
      Prison work requirements that knowingly compel inmates to perform
physical labor that is beyond their strength, endanger their lives, or cause undue
pain constitute cruel and unusual punishment. Howard, 707 F.2d at 220. A
negligent assignment to work that is beyond the prisoner’s physical abilities,
however, is not unconstitutional. Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.
1989). Taking Stroble’s allegations as true shows that he had a work restriction
for no repetitive use of hands. Stroble told Lindley of this restriction when he
arrived for his work assignment in the prison laundry. Lindley ordered him to
work folding clothes. He started to fold clothes but stopped due to pain. After

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                                  No. 12-11055

discussing the matter with the laundry room captain, Lindley escorted Stroble
to the security desk where he was given a medical pass. These facts do not
support Stroble’s conclusional allegation that Lindley ordered him to fold clothes
with the sadistic and malicious intent to cause him pain. These facts show no
more than a disagreement as to whether a work assignment of folding clothes
violates a restriction against repetitive hand motion. At most, Lindley may have
negligently ordered Stroble to fold clothes with a restriction against repetitive
hand motion.     This is insufficient to state a viable claim for deliberate
indifference. See Jackson, 864 F.2d at 1246.
      Stroble’s original action brought claims against defendants other than
Lindley. Stroble’s current motion offers no discernible challenge to the dismissal
of these claims. Because Stroble has not addressed the dismissal of these claims,
he has abandoned any challenge to the dismissal. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      The magistrate judge’s dismissal of Stroble’s 42 U.S.C. § 1983 complaint
and our dismissal of his appeal as frivolous count as two strikes for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Stroble is warned that if he accumulates three strikes, he will not be
allowed to bring a civil action or appeal a judgment in forma pauperis while he
is incarcerated or detained in any facility unless he is under imminent danger
of serious physical injury. See § 1915(g).
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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