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should not be published and is not precedent except under the limited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. 09-30423

Summary Calendar

PETER ROY ALFRED, JR.

Plaintiff-Appellant

v.

FORCHT WADE CORRECTIONAL CENTER; VENETIA MICHAEL;

ANTHONY BATSON; DR. HERN; LAURA GEHRIG; W. COLT PALMER;

UNKNOWN INSURANCE CO.; RICHARD STALDER; LINDA RAMSEY

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:07-CV-2098

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Peter Roy Alfred, Jr., Louisiana prisoner # 315023, moves for leave to

proceed in forma pauperis (IFP) on appeal following the district court’s denial of

his IFP motion and certification that his appeal was not taken in good faith.

Alfred’s IFP motion challenging the certification decision “must be directed

solely to the trial court’s reasons for the certification decision.” Baugh v. Taylor,

United States Court of Appeals

Fifth Circuit

F I L E D

November 12, 2009

Charles R. Fulbruge III

Clerk
No. 09-30423

2

117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether the appeal is taken

in good faith “is limited to whether the appeal involves legal points arguable on

their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983) (internal quotation marks and citations omitted).

The district court is directed to dismiss a complaint filed by a prisoner if

the complaint is frivolous. See 28 U.S.C. §§ 1915A(b)(1) & 1915(e)(2)(B). This

court reviews the dismissal of a complaint as frivolous for abuse of discretion.

Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). A complaint is frivolous if

it lacks “an arguable basis in law or fact.” Id. “A complaint lacks an arguable

basis in law if it is based on an indisputably meritless legal theory[.]” Id.

(internal quotation marks and citations omitted).

Alfred argues that the defendants violated his Eighth Amendment rights

by failing to provide him with a continuous positive airway pressure machine

(CPAP) to treat his diagnosed severe sleep apnea. A plaintiff states a cause of

action under the Eighth Amendment when he alleges that a defendant has, with

deliberate indifference, exposed him to an unreasonable risk of serious damage

to his future health. Helling v. McKinney, 509 U.S. 25, 35 (1993); Burleson v.

Texas Dep’t of Criminal Justice, 393 F.3d 577, 589 (5th Cir. 2004). To establish

deliberate indifference a prisoner must show that the defendants “(1) were aware

of facts from which an inference of excessive risk to the prisoner’s health or

safety could be drawn and (2) that they actually drew an inference that such

potential for harm existed.” Burleson, 393 F.3d at 589. (internal quotation

marks and citations omitted). “Deliberate indifference encompasses only

unnecessary and wanton infliction of pain repugnant to the conscience of

mankind.” McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997).

“Disagreement with medical treatment does not state a claim for Eighth

Amendment indifference to medical needs.” Norton v. Dimazana, 122 F.3d 286,

292 (5th Cir. 1997).
No. 09-30423

3

The record shows that Alfred received adequate medical treatment for his

sleep apnea during his stay at Forcht Wade Correctional Center. Further, an

affidavit by Dr. Alphonzo Pacheco establishes that Alfred continued to receive

medical attention for his sleep apnea following his transfer to Winn Correctional

Center and that the sleep apnea never posed a serious risk to Alfred’s health.

See Burleson, 393 F.3d at 589. Alfred has been receiving CPAP treatments since

May 2008. 

Alfred has failed to show that the district court abused its discretion in

dismissing his Eighth Amendment claim as frivolous. See Geiger, 404F.3d at

373. Further, contrary to Alfred’s suggestion, he did not have a right to a default

judgment simply because the defendants did not respond to his suit. See

Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996) (“A party is not entitled to a

default judgment as a matter of right, even where the defendant is technically

in default.”). 

Alfred’s appeal is without arguable merit and is frivolous. See Howard,

707 F.2d at 220. The district court’s dismissal of Alfred’s complaint and this

court’s dismissal of his appeal both count as strikes for purposes of § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Alfred has at

least one previous strike. Alfred v. Lofton, No. 1:08-CV-0554 (W.D. La. Sept. 9,

2008). Because Alfred has now accumulated at least three strikes, he is barred

from proceeding 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 § 1915(g).

Alfred’s motion to proceed IFP is DENIED, and his appeal is DISMISSED

as frivolous pursuant to 5TH CIR. R. 42.2.