Lee v. Davis ( 2023 )

Case: 21-40783 Document: 00516625976 Page: 1 Date Filed: 01/27/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 21-40783 FILED
January 27, 2023
____________
Lyle W. Cayce
Lawrence Lee, Clerk
Plaintiff—Appellant,
versus
Lorie Davis; Pamela Pace; Unknown Party, Head Warden,
Coffield Unit; John Doe, University of Texas Medical Branch; John
Doe, Northeast Texas Public Health District Regional Laboratory; John
Doe, Texas Commission on Environmental Quality, Public Drinking Water,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:21-CV-147
______________________________
Before Haynes, Engelhardt, and Oldham, Circuit Judges.
Per Curiam:*
Lawrence Lee, Texas prisoner # 1641724, requests leave to proceed in
forma pauperis (IFP) in his appeal of the district court’s dismissal with
prejudice of his 42 U.S.C. § 1983 complaint for failure to state a claim. See
28 U.S.C. § 1915A(b). He alleged that he contracted an H. pylori bacterial
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-40783 Document: 00516625976 Page: 2 Date Filed: 01/27/2023
No. 21-40783
infection after consuming bad-smelling, dark-colored drinking water in
prison and that he experienced strong stomach pain due to the infection,
which persisted after he received treatment.
To proceed IFP, Lee must demonstrate financial eligibility and a
nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th
Cir. 1982). We apply de novo review to dismissals for failure to state a claim
pursuant to the Prison Litigation Reform Act. See DeMoss v. Crain, 636 F.3d
145, 152 (5th Cir. 2011). A plaintiff fails to state a claim upon which relief can
be granted when the claim does not contain “‘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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
Even if Lee sufficiently alleged facts to show that contaminated water
caused his infection, he failed to allege any facts to show that the defendants
were subjectively aware of an excessive risk to inmate health or safety created
by the water. See Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001). To
the extent that Lee attempted to raise a claim of inadequate medical care, he
alleged only that the provided medical treatment did not alleviate his
symptoms, which was insufficient to state a denial-of-medical-care claim that
was plausible on its face. See In re Katrina Canal Breaches, 495 F.3d at 205;
Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).
Because Lee has not demonstrated that his appeal involves “legal
points arguable on their merits,” his motion to proceed IFP is DENIED,
and his appeal is DISMISSED as frivolous. Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983) (internal quotation marks and citation omitted); see Baugh
v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5th Cir. R. 42.2.
The district court’s dismissal for failure to state a claim and our
dismissal of this appeal as frivolous count as “strikes” under 28 U.S.C.
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No. 21-40783
§ 1915(g). See Coleman v. Tollefson, 575 U.S. 532, 537-39 (2015). Lee is
WARNED that if he accumulates three strikes, he will not be able to
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).
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