     Case: 14-40795        Document: 00513303500       Page: 1    Date Filed: 12/10/2015




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

                                                                               FILED
                                    No. 14-40795                       December 10, 2015
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
DAVID LEE BALLARD,

                                                 Plaintiff-Appellant

v.

JENNIFER RAYBURN, Phlebotomist at Eastham Unit,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:14-CV-22


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       David Lee Ballard, Texas prisoner # 574921 (formerly # 537173), appeals
the district court’s dismissal of his 42 U.S.C. § 1983 suit as frivolous and for
failure to state a claim upon which relief can be granted under 28 U.S.C.
§ 1915(e)(2)(B)(i),(ii).    He maintains that his constitutional rights were
infringed when the defendant injured his arm while drawing his blood.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40795     Document: 00513303500     Page: 2   Date Filed: 12/10/2015


                                  No. 14-40795

      We conduct a de novo review of the dismissal. See Samford v. Dretke,
562 F.3d 674, 678 (5th Cir. 2009). A complaint is frivolous if it lacks an
arguable basis in either law or fact. Denton v. Hernandez, 504 U.S. 25, 31
(1992). A complaint fails to state a claim upon which relief may be granted
“when it does not contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Rogers v. Boatright, 709 F.3d 403,
407 (5th Cir. 2013) (internal quotation marks and citation omitted). Ballard
has shown no error in the district court’s conclusion that he had failed to raise
a claim upon which relief could be granted because his allegations showed no
more than negligence, which is insufficient to show that a defendant has acted
with deliberate indifference to a prisoner’s serious medical needs. See Stewart
v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999). Because this appeal presents no
legal points arguable on their merits, it is dismissed. See 5TH CIR. R. 42.2.
      The district court’s dismissal of Ballard’s complaint and our dismissal of
this appeal as frivolous both count as strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Ballard has at least one previous strike. Ballard v. Simien, No. 4:07-cv-00791
(S.D. Tex. Apr. 3, 2008); Ballard v. Simien, No. 08-20253 (5th Cir. April 23,
2009); Adepegba, 103 F.3d at 385-87. Because Ballard has now accumulated
at least three strikes, he is barred from proceeding 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).
   APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.




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