* 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should not be published and is not precedent except under the limited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. 07-30917

Conference Calendar

LEON BOYD

Plaintiff-Appellant

v.

RICHARD STALDER; STATE OF LOUISIANA; WILLIAM EARL HILSTON

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:07-CV-542

Before DAVIS, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

Leon Boyd, Louisiana prisoner # 352412, appeals the dismissal of his 42

U.S.C. § 1983 action with prejudice as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i). Boyd argues that the defendants were deliberately indifferent

to his medical needs. He argues that he should have received surgery to stop the

progression of blindness due to sarcoidosis. He was treated with medication

instead and is now blind in his left eye.

United States Court of Appeals

Fifth Circuit

F I L E D

December 10, 2008

Charles R. Fulbruge III

Clerk
No. 07-30917

2

A district court may dismiss an in forma pauperis (IFP) complaint as

frivolous under § 1915(e) if it lacks an arguable basis in law or fact. Norton v.

Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). We review a § 1915 dismissal as

frivolous for abuse of discretion. Id.

Prison officials violate the Eighth Amendment prohibition against cruel

and unusual punishment when they demonstrate deliberate indifference to a

prisoner’s serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). An

inmate “must show that the officials refused to treat him, ignored his

complaints, intentionally treated him incorrectly, or engaged in any similar

conduct that would clearly evince a wanton disregard for any serious medical

needs.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.

2001) (internal quotation marks and citation omitted). “Deliberate indifference

requires actual knowledge and conscious disregard of the risk of harm to the

plaintiff.” Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002).

Boyd was given an opportunity to amend his complaint when the

magistrate judge ordered him to provide a more definite statement. See Hogan

v. Midland County Commissioners Court, 680 F.2d 1101, 1103 (5th Cir. 1982).

Boyd has not alleged that the defendants actually knew about his medical

condition or consciously disregarded the risk of harm he faced. The district court

did not abuse its discretion in dismissing Boyd’s complaint as frivolous. Because

Boyd has not raised an issue of arguable merit, his appeal is frivolous. See

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). As such, it is dismissed. See

5TH CIR. R. 42.2. 

The district court’s dismissal of Boyd’s action as frivolous and the

dismissal of this appeal as frivolous each count as a strike for purposes of

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Boyd

is warned that if he accumulates three strikes pursuant to § 1915(g), he may not

proceed IFP in any civil action or appeal filed while he is incarcerated or
No. 07-30917

3

detained in any facility unless he is under imminent danger of serious physical

injury. 

APPEAL DISMISSED; SANCTION WARNING ISSUED.