Brewster v. Katragadda

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-41297
Conference Calendar
JAMES EARL BREWSTER,
Plaintiff-Appellant,
versus
UPENDRA KATRAGADDA; ET AL.,
Defendants,
UPENDRA KATRAGADDA; DEBRA GREEN;
ARUSHA JONES; C. STEPNER; JANIE COCKRELL,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:02-CV-420
--------------------
Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
James Earl Brewster, Texas prisoner # 664663, proceeding pro
se and in forma pauperis (IFP), appeals the district court’s
dismissal of his 42 U.S.C. § 1983 civil rights action against
Texas Department of Criminal Justice-Institutional Division
officials. He argues that the defendants failed to protect him
from being attacked by a fellow inmate. Brewster has not shown
*
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this opinion should not be published and is not precedent except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. 04-41297
-2-
that the officials ignored his request to be moved, nor has he
shown that the officials perceived the alleged threat as posing a
substantial risk of serious harm. Accordingly, Brewster has
failed to show that the defendants acted with deliberate
indifference. See Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003).
Brewster’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, we DISMISS his appeal as frivolous. 5TH CIR.
R. 42.2. The dismissal by the district court and the dismissal
of this appeal as frivolous both count as strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th
Cir. 1996). Brewster is WARNED that if he accumulates three
strikes under 28 U.S.C. § 1915(g), 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.