     Case: 18-51094      Document: 00515076337         Page: 1    Date Filed: 08/14/2019




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

                                                                                  FILED
                                      No. 18-51094                          August 14, 2019
                                                                             Lyle W. Cayce
DEANTE CLAY,                                                                      Clerk


                                                 Plaintiff-Appellant

v.

PAMELA WAGNER, Medical Practitioner; PATIENCE CAIN, Medical
Practitioner,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CV-360


Before JONES, COSTA, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Deante Clay, Texas prisoner # 1917341, filed a 42 U.S.C. § 1983
complaint against Pamela Wagner and Patience Cain, medical practitioners in
the John B. Connolly Unit of the Texas Department of Criminal Justice. The
district court dismissed the complaint for failure to state a claim and certified
that an appeal would not be taken in good faith. Clay now requests leave to
proceed in forma pauperis (IFP) on appeal.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-51094     Document: 00515076337       Page: 2     Date Filed: 08/14/2019


                                   No. 18-51094

      To proceed IFP, Clay must demonstrate financial eligibility and a
nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). In determining whether a nonfrivolous issue exists, our inquiry “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) (internal quotation marks and citation omitted). If we uphold the district
court’s certification that the appeal is not taken in good faith, Clay must pay
the filing fee, or the appeal will be dismissed for want of prosecution. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Alternatively, “where the
merits are so intertwined with the certification decision as to constitute the
same issue,” we may deny the IFP motion and dismiss the appeal sua sponte
if it is frivolous. Id. at 202 & n.24; see 5TH CIR. R. 42.2.
      Clay’s allegations that the defendants unsuccessfully or negligently
treated his condition on multiple occasions are not sufficient to state a claim
for deliberate indifference to his medical needs.        See Gobert v. Caldwell,
463 F.3d 339, 345-46 (5th Cir. 2006). As for his claims that the defendants
ignored his complaints of a painful chemical burn caused by the first
treatment, he has not stated a facially plausible claim for relief. See In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).                 He
acknowledges that the defendants attempted to treat to his underlying
condition several times over multiple months, see Gobert, 463 F.3d at 349-52,
and his bald legal assertions that the defendants were deliberately indifferent
are not sufficient to state a culpable mental state, see Coleman v. Lincoln Par.
Det. Ctr., 858 F.3d 307, 309 (5th Cir. 2017).
      Accordingly, Clay’s motion to proceed IFP is denied and the appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at
220; 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous and the district



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                                  No. 18-51094

court’s dismissal of Clay’s § 1983 complaint for failure to state a claim count as
two strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996). Clay is warned that once he accumulates three
strikes, he may not proceed IFP 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).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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