Summary Calendar GERALD RAY BARROW v. Texas Department of Corrections Correctional Industries Manufacturer of Tray/food…

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40274
Summary Calendar
GERALD RAY BARROW
Plaintiff-Appellant
v.
TEXAS DEPARTMENT OF CORRECTIONS CORRECTIONAL INDUSTRIES
MANUFACTURER OF TRAY/FOOD SERVICE MANAGERS
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CV-372
Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Gerald Ray Barrow, Texas prisoner # 579954, filed a lawsuit pursuant to
42 U.S.C. § 1983 alleging that his Eighth Amendment rights had been violated
because the food trays used at his prison were contaminated, cheaply made, and
not stain resistant. The district court dismissed Barrow’s complaint as frivolous
pursuant to 28 U.S.C. § 1915A.
United States Court of Appeals
Fifth Circuit
F I L E D
March 28, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40274
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The district court’s dismissal of a complaint as frivolous is reviewed for
abuse of discretion. Martin v. Scott, 156 F. 3d 578, 580 (5th Cir. 1998). A
complaint is frivolous “‘if it lacks an arguable basis in law or fact.’” Berry v.
Brady, 192 F. 3d 504, 507 (5th Cir. 1999) (quoting Talib v. Gilley, 138 F. 3d 211,
213 (5th Cir. 1998).
Barrow’s claim under the Eighth Amendment lacks merit. A prisoner
must satisfy two requirements, consisting of an objective and subjective
component, in order to establish a conditions-of-confinement claim under the
Eighth Amendment. Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998). Barrow
admitted in the district court that he had not suffered any physical injury from
the purportedly contaminated food trays and that he was not aware whether
other inmates or staff suffered physical injury. He fails to assert, and the record
does not reveal, any other facts that would otherwise support an objective
finding that the condition of the prison trays qualifies as an “extreme
deprivation[].” See id. Likewise, because there is no evidence that prison
officials acted with deliberate indifference, Barrow cannot establish the
subjective requirement. See Harper v. Showers, 174 F.3d 716, 720 (5th Cir.
1999). Barrow has thus failed to show that the district court abused its
discretion in dismissing his Eighth Amendment claims as frivolous.
Barrow also alleges that he was denied access to the courts because the
defendants were not required to answer his claims. This claim is meritless.
Section 1915A specifically allows for a dismissal prior to ordering a response
from defendants. Barrow’s two motions to supplement the record and his motion
to allow attachments to the brief are denied.
Barrow’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous,
it should be dismissed. See 5TH CIR. R. 42.2. The dismissal of this appeal as
frivolous as well as the district court’s dismissal of the complaint each count as
a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,

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No. 07-40274
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387-88 (5th Cir. 1996). Barrow has previously accumulated two strikes. See
Barrow v. Tex. Dept. Corr. et al, No. C-04-496 (S.D. Tex. Oct. 17, 2006); Barrow
v. Swisher County, No. C-04-455 (S.D. Tex. Mar. 16, 2005). As Barrow has now
accumulated at least three strikes, he may not proceed in forma pauperis in any
civil action or appeal while incarcerated unless he “is under imminent danger of
serious physical injury.” § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; MOTIONS
DENIED.

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