* 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that this opinion should not be published and is not precedent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. 02-10072

Summary Calendar

 

GARY L. BRADSHAW,

Plaintiff-Appellant,

versus

UNKNOWN LIEUTENANT, Texas Department of Criminal Justice Officer;

TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION

OFFICIALS, ADMINISTRATION; UNKNOWN MANUFACTURER OF CHEMICAL

AGENT; LESLIE WOODS, Warden; UNKNOWN NURSE, Allred Unit; UNIT

HEALTH ADMINISTRATOR, Allred Unit; A. MCNULTY, Officer; NFN

WILLS, Captain; NFN SMITH; JOHN DOE, #2, Step 2 Grievance

Person; JOHN DOE, #3, Step 3 Grievance Person; INTERNAL AFFAIRS

DEPARTMENT; CHIEF, Internal Affairs Division; TOMMY L. NORWOOD,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:00-CV-156-R

--------------------

August 21, 2002

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Gary L. Bradshaw, Texas prisoner # 413854, has filed a

motion for leave to proceed in forma pauperis (IFP) on appeal,

following the district court’s dismissal of his 42 U.S.C. § 1983
No. 02-10072

-2-

action as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). By

moving for IFP status, Bradshaw is challenging the district

court’s certification that IFP status should not be granted on

appeal because his appeal is not taken in good faith. See Baugh

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

Bradshaw has not shown that he will raise a nonfrivolous

issue on appeal. Bradshaw alleged that the district court abused

its discretion in dismissing his claim that Norwood used

excessive force against him; he alleged that Norwood sprayed him

with mace when he refused to accept his new cell assignment

because he did not want to live with a white inmate. Bradshaw

alleged that he suffered burning eyes and skin for approximately

24 hours, twitching of his eyes, blurred vision, irritation of

his nose and throat, blistering of his skin, rapid heartbeat,

mental anguish, shock and fear as a result of the use of mace. 

He has not shown that he suffered more than a de minimis injury

or that the force used by Norwood was objectively unreasonable

under the circumstances. See Williams v. Bramer, 180 F.3d 699,

703, clarified on reh’g, 186 F.3d 633, 634 (5th Cir. 1999); Ikerd

v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996).

Bradshaw argues that the district court abused its

discretion in dismissing as frivolous his claim that he was

denied adequate medical care after the use of mace. Bradshaw

acknowledges that the nurse examined him and determined that he

did not need medical care. His disagreement with the nurse’s
No. 02-10072

-3-

assessment is insufficient to establish an unconstitutional

denial of medical care. See Varnado v. Lynaugh, 920 F.2d 320,

321 (5th Cir. 1991); Norton v. Dimazana, 122 F.3d 286, 292 (5th

Cir. 1997).

Bradshaw argues that the district court abused its

discretion in dismissing as frivolous his claim that prison

officials filed false disciplinary charges against him as a

result of this incident. Because Bradshaw has not shown that the

disciplinary action has been reversed, this claim is not

cognizable under 42 U.S.C. § 1983. See Edwards v. Balisok, 520

U.S. 641, 648 (1997); Heck v. Humphrey, 512 U.S. 477, 487 (1994).

Bradshaw argues that the manufacturer of the mace was

negligent because it designed a dangerous product without

adequate testing and without instructing prison officials

concerning how to use it or how to decontaminate people after it

had been used. Bradshaw’s claim is not cognizable under 42

U.S.C. § 1983 because the manufacturer is not a state actor and

because negligence does not give rise to a 42 U.S.C. § 1983

action. See Daniels v. Williams, 474 U.S. 327, 332-36 (1986);

Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir.

1994).

Because Bradshaw has not shown that the district court erred

in certifying that his appeal is not taken in good faith, his

request for IFP status is DENIED, and his appeal is DISMISSED as

frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. 
No. 02-10072

-4-

Bradshaw is cautioned that the district court’s dismissal of this

action and this court’s dismissal of this appeal both count as

“strikes” pursuant to 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Bradshaw is advised

that if he accumulates three strikes, he will be barred from

bringing a civil action or an appeal proceeding IFP unless he is

under imminent danger of serious physical injury. See 28 U.S.C.

§ 1915(g). Bradshaw is also advised to review any pending

pleadings or appeals to ensure that they do not raise any

frivolous claims. Bradshaw’s “motion for appointment of counsel

and additional time” is also DENIED.