Richard v. Jefferson Parish ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30491
Summary Calendar
RYAN RICHARD; ET AL.,
Plaintiffs,
DENAUD EGANA,
Plaintiff-Appellant,
versus
JEFFERSON PARISH; HARRY LEE;
GARY SCHWABE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-1469-T
--------------------
December 8, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Denaud Egana, Louisiana prisoner # 410663, challenges the
district court’s dismissal of his 42 U.S.C. § 1983 lawsuit as
frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B). He asserts
that his exposure to fresh paint fumes for a two-week period
while the adjacent cellblock was being painted, causing him
headaches and dizziness, violated his constitutional rights.
*
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that this opinion should not be published and is not precedent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. 00-30491
-2-
This court has a duty, sua sponte, to determine at the
outset whether it has appellate jurisdiction. Mosley v. Cozby,
813 F.2d 659, 660 (5th Cir. 1987). It is unclear whether Egana’s
notice of appeal is timely because there is no indication in the
record that he placed it in the prison mail system within 30 days
of the district court’s judgment. However, because his appeal is
frivolous, remand for a determination on the issue would be
futile. See United States v. Alvarez, 210 F.3d 309, 310 (5th
Cir. 2000). Egana’s allegations do not show either that he was
exposed to a risk of substantial harm or that the appellees were
deliberately indifferent to any risk by failing to take
reasonable measures to abate it. See Farmer v. Brennan, 511 U.S.
825, 847 (1994); Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir.
1996). Egana’s appeal is wholly without merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2. Accordingly, his appeal is DISMISSED for
lack of jurisdiction. See Alvarez, 210 F.3d at 310.
DISMISSED.