Opinion
No. 07-10926 Conference Calendar.
April 15, 2008.
Frederick Dewayne Malone, Tarrant County Jail, Fort Worth, TX, pro se.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:07-CV-488.
Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
Frederick Dewayne Malone, Texas prisoner # 0699305, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint as frivolous. Malone argues that the defendant demonstrated deliberate indifference to his serious medical needs because the defendant treated his skin condition with only a shot and one bar of soap. Malone alleges that he should have also received lotion and dandruff shampoo.
Malone fails to allege facts to support a claim of deliberate indifference to a serious medical need as is required in order to proceed under the Eighth Amendment and § 1983. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Malone's appeal is without arguable merit and thus frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Therefore, it is dismissed as frivolous. See 5TH CIR. R. 42.2. The district court's dismissal of Malone's complaint as frivolous and this court's dismissal of Malone's appeal count as two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Malone is cautioned that if he accumulates three strikes, he will no longer be allowed 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.