Atkins v. Sheriff's Jail Avoyelles Parish ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 20, 2008
No. 07-30894
Summary Calendar Charles R. Fulbruge III
Clerk
JAMES ALVIN ATKINS
Plaintiff-Appellant
v.
SHERIFF’S JAIL AVOYELLES PARISH
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:07-CV-684
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
James Alvin Atkins, Louisiana prisoner # 416076, appeals the dismissal
of his 42 U.S.C. § 1983 civil rights complaint as frivolous and for failure to state
a claim upon which relief could be granted.
Atkins argues on appeal that prison officials acted with deliberate
indifference to his health or safety when they failed to repair leaks that caused
water puddles, which in turn caused Atkins to slip and fall. However, Atkins
has not shown that the officials disregarded any inference that there was a
*
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should not be published and is not precedent except under the limited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. 07-30894
substantial risk of serious harm, and his claims amount only to claims of
unreasonableness or negligence, neither of which establishes an Eighth
Amendment violation. See Cantu v. Jones, 293 F.3d 839, 844 (5th Cir. 2002);
Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996) (en banc); Neals v.
Norwood, 59 F.3d 530, 533 (5th Cir. 1995).
Atkins also argues that Steven Dozat was deliberately indifferent to his
serious medical needs when he delayed sending Atkins to a doctor concerning his
May 19, 2006, injury until July 21, 2006. However, Atkins has not shown that
the delay in treatment substantially harmed him or exacerbated his injury in
any way, and he has not shown that Dozat’s administration of Motrin and
Tylenol alone during the delay were attributable to anything more than
negligence, which does not establish a constitutional violation. See Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
The district court’s dismissal of Atkins’s complaint as frivolous and for
failure to state a claim counts as a strike for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Atkins 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 he is under imminent danger of serious physical
injury. See § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED
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