IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40954

Summary Calendar

ARTHUR LOWE,

Plaintiff-Appellant

v.

JACOB A. RICHARDSON,

Defendant-Appellee

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 6:10-CV-310

Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Arthur Lowe, Texas prisoner # 669750, seeks leave to proceed in forma

pauperis (IFP) on appeal of the district court’s dismissal of his civil action as

frivolous and for failure to state a claim upon which relief may be granted.

By moving for leave to proceed IFP, Lowe is challenging the district court’s

certification that his appeal is not taken in good faith because it is frivolous. See

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);

FED. R. APP. P. 24(a)(5).

United States Court of Appeals

Fifth Circuit

F I L E D

April 22, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-40954 Document: 00511454509 Page: 1 Date Filed: 04/22/2011
No. 10-40954

Lowe argues that the sack meals he was given during a lock down were too

cold to be eaten, depriving him of food in violation of the Eighth Amendment.

He contends that the sack meals violated Texas Department of Criminal Justice,

Correctional Institutions Division (TDCJ-CID) policy because they were not

wholesome and nutritious. He asserts that his weight gain, reflected by his

weight of 227 pounds after the lock down ended, does not disprove his claims

because he was weighed six days after the lock down ended, and he ate more

than he normally did during that time. Lowe maintains that the refrigerating

of the sack meals at temperatures below 40 degrees violated TDCJ-CID policy

because TDCJ-CID policy did not require that the sack meals be stored at

temperatures that low.

Although Lowe alleged that the sack meals he received during the lock

down were so cold that they were inedible, he acknowledged that the meals were

not frozen. Furthermore, Lowe admitted that he did eat some of the cold meals

that were provided. Lowe did not allege that the sack meals were nutritionally

inadequate, only that they were too cold. As Lowe alleged only that the meals

were served too cold, not that they were nutritionally insufficient, his complaint

did not state a constitutional claim. See Eason v. Thaler, 73 F.3d 1322, 1327

(5th Cir. 1996).

Lowe’s appeal is without arguable merit and is frivolous. See Howard v.

King, 707 F.2d 215, 219-20 (5th Cir. 1983). The IFP motion is denied, and the

appeal is dismissed. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2.

Lowe is cautioned that the dismissal of this appeal as frivolous and the

district court’s dismissal of the complaint both count as strikes under § 1915(g).

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

cautioned that if he accumulates three strikes under § 1915(g), he will be unable

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).

2

Case: 10-40954 Document: 00511454509 Page: 2 Date Filed: 04/22/2011
No. 10-40954

IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.

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Case: 10-40954 Document: 00511454509 Page: 3 Date Filed: 04/22/2011