* 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should not be published and is not precedent except under the limited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
No. 07-40274

2

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,
No. 07-40274

3

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.