                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 14, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-41123
                         Summary Calendar


CLIFFORD ALLEN SMITH,

                                    Plaintiff-Appellant,

versus

GEAN LEONARD, Sheriff; GALVESTON COUNTY,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 3:06-CV-179
                      --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Clifford Allen Smith, Texas prisoner # 184026, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 civil rights

complaint against Galveston County Sheriff Gean Leonard and

Galveston County in which he argued that he had slipped and was

injured while exiting the prison shower because Leonard had not

placed nonslip material in the shower exit.

     Although the district court did not address Smith’s claims

against Galveston County, this jurisdictional issue should be



     *
       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this opinion should not be published and is not precedent except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. 06-41123
                                 -2-

pretermitted because Smith’s appeal is frivolous.    See United

States v. Weathersby, 958 F.2d 65, 66 (5th Cir. 1992).

     Smith argues on appeal that Leonard, the Galveston County

Sheriff’s Department, and the County of Galveston acted with

gross negligence by failing to place a shower mat in the shower

exit.

     As to Smith’s claims against Leonard, to the extent that

Smith is arguing that Leonard merely was negligent in failing to

provide a shower mat, negligence does not impose liability under

§ 1983.   See Eason v. Thaler, 73 F.3d 1322, 1329 n.3 (5th Cir.

1996).    Smith’s brief also may be liberally construed to contend

that Leonard’s actions violated the Eighth Amendment’s

prohibition against cruel and unusual punishment.   Smith contends

that Leonard knew about the slippery conditions in the shower

because another inmate had filed a grievance about them, because

Leonard had worked in the jail before becoming sheriff, and

because the medical infirmary had a nonslip shower exit.   Because

Smith did not raise the latter two arguments in the district

court, he may not raise them for the first time on appeal.     See

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999).    As to his first argument, Smith has not shown that there

was an Eighth Amendment violation.    See Thompkins v. Belt, 828

F.2d 298, 303-04 (5th Cir. 1987).

     As to Smith’s claims against Galveston County, Smith has not

shown that an official policy or custom of the County of
                           No. 06-41123
                                -3-

Galveston mandated the lack of nonslip shower exits or that the

County had any authority to make such a policy.   Accordingly, the

fact that the district court did not address Smith’s claims

against the County of Galveston is not reversible error.    See

FED. R. CIV. P. 61; Piotrowski v. City of Houston, 237 F.3d 567,

578 (5th Cir. 2001).

     Smith also contends that he included the Galveston County

Sheriff’s Department as a defendant in the case when he sued

Leonard in his official capacity and added the phrase “ET AL”

after Leonard’s name.   However, because Smith did not name the

Sheriff’s Department as a defendant in his complaint, he may not

raise a new claim against the Sheriff’s Department on appeal.

See Leverette, 183 F.3d at 342.

     Smith’s appeal is without arguable merit and is thus

frivolous.   See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983).   Accordingly, we dismiss his appeal as frivolous.   5TH CIR.

R. 42.2.   The dismissal of this appeal as frivolous and the

district court’s dismissal of Smith’s complaint as frivolous

count as two strikes under 28 U.S.C. § 1915(g).   See Adepegba v.

Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996); Smith v. Leonard,

No. 3:06-CV-179 (S.D. Tex. June 22, 2006).   Smith is warned that

if he accumulates three strikes under § 1915(g), he will not be

able to proceed in forma pauperis in any civil action or appeal

filed while he is incarcerated or detained in any facility unless
                          No. 06-41123
                               -4-

he is under imminent danger of serious physical injury.   See

§ 1915(g).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
