* 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should not be published and is not precedent except under the limited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. 07-60637

Summary Calendar

TONY TERRELL BUNTON

Plaintiff-Appellant

v.

CORRECTIONAL CORPORATION OF AMERICA; JODY BRADLEY,

Superintendent at Delta Correctional Facility; DELTA CORRECTIONAL

FACILITY; UNKNOWN JOHNSON, Facility at Delta Correctional Facility, in

his individual and official capacities; UNKNOWN JONES, Sergeant at Delta

Correctional Facility, in his individual and official capacities; UNKNOWN

MCTIMS, Correctional Officer, in his individual and official capacities;

UNKNOWN NORAL, Lieutenant at Delta Correctional Facility, in his individual

and official capacities; GWEN PORTER, Medical Supervisor at Delta

Correctional Facility, in his individual and official capacities; UNKNOWN

THOMAS, Case Manager at Delta Correctional Facility, in her individual and

official capacities

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:04-CV-354

Before BARKSDALE, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

August 12, 2008

Charles R. Fulbruge III

Clerk
No. 07-60637

2

Tony Bunton, Mississippi prisoner # R5106, moves to proceed in forma

pauperis (IFP) to appeal the summary judgment dismissal of his 42 U.S.C.

§ 1983 suit. Bunton argues that (1) he was injured as a result of being housed

under constitutionally inadequate prison conditions when he slipped in a puddle

caused by a roof leak and (2) he received constitutionally inadequate medical

care for his injury. By moving for leave to proceed IFP, Bunton is challenging

the district court’s certification that his appeal was not taken in good faith. See

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

Bunton, however, has not shown that the district court’s summary

judgment dismissal presents a nonfrivolous issue. The summary judgment

evidence did not objectively establish that Bunton’s prison conditions were

inhumane or constituted an “extreme deprivation of any minimal civilized

measure of life’s necessities.” See Gates v. Cook, 376 F.3d 323, 332 (5th Cir.

2004) (internal quotation marks and citation omitted). Even if it is assumed

arguendo that the leaking roof constituted a condition that posed a substantial

risk of serious harm to Bunton, the evidence established that the defendants

took reasonable remedial measures and, thus, did not act with deliberate

indifference. See Farmer v. Brennan, 511 U.S. 825, 847 (1994). Bunton’s prison

conditions did not, as a matter of law, rise to the level of inhumane treatment

such that his Eighth Amendment rights were violated.

Bunton’s contention that his injury was met with deliberate indifference

and constitutionally inadequate medical care is refuted by evidence that his

medical complaints were not ignored, he was seen by members the medical staff

on numerous occasions, and he was treated for those complaints with various

medications. See Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756

(5th Cir. 2001). Bunton’s allegations that the pain medication he was given was

inadequate and that he should have received a bone scan to better diagnose his

injury are merely disagreements over the type of care provided, which are not

actionable under § 1983. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
No. 07-60637

3

1991). The summary judgment evidence establishes that Bunton’s medical care

also was not violative of the Eighth Amendment. 

In light of the foregoing, Bunton’s appeal is without arguable merit and is

dismissed. Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. Our dismissal of

Bunton’s appeal counts as a strike for purposes of 28 U.S.C. § 1915(g). See

Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Bunton previously

earned one strike in Bunton v. Hinds County Sheriff’s Dep’t, No. 3:01-CV-684

(S.D. Miss. Feb. 20, 2003). Bunton is cautioned that if he accumulates three

strikes, he will no longer be allowed to proceed IFP in any civil action or appeal

filed while he is detained or incarcerated in any facility unless he is under

imminent danger of serious physical injury. See § 1915(g).

IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.