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should not be published and is not precedent except under the limited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. 09-40286

Summary Calendar

JEREMY LEE CONLIN,

Plaintiff-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION; TEXAS CORRECTIONAL

INDUSTRIES, a Division of TDCJ-CID Logistics Division; BRAD LIVINGSTON,

Individually and in his Official Capacity as Executive Director TDCJ-CID,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:08-CV-175

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Jeremy Lee Conlin, Texas prisoner # 01293724, appeals the dismissal,

pursuant to 28 U.S.C. § 1915(e)(2)(B), as frivolous and for failure to state a claim

of his 42 U.S.C. § 1983 civil rights lawsuit asserting a violation of his Eighth

Amendment rights as a result of having to sleep on an unsupportive mattress.

United States Court of Appeals

Fifth Circuit

F I L E D

October 16, 2009

Charles R. Fulbruge III

Clerk
No. 09-40286

2

The district court’s dismissal is reviewed de novo, accepting all of Conlin’s

allegations as true. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).

Conlin contends that the dismissal of his complaint was error because he

has stated a claim under the Eighth Amendment. He also seeks to raise, for the

first time on appeal, new state-law tort claims for negligence and products

liability, as well as a new claim for state-created danger under the Eighth

Amendment. These newly raised claims will not be considered. Stewart Glass

& Mirror, Inc. v. U.S. Auto Glass Discount Centers, Inc., 200 F.3d 307, 316-17

(5th Cir. 2000); see also Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th

Cir. 1999).

An inmate 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). “[T]he deprivation alleged must be, objectively, sufficiently serious; a

prison official’s act or omission must result in the denial of the minimal civilized

measures of life’s necessities.” Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir.

1999) (internal quotation marks and citation omitted). “[E]xtreme deprivations

are required” in order to meet the objective component of a

conditions-of-confinement claim. Davis, 157 F.3d at 1006 (internal quotation

marks and citation omitted). In order to satisfy the subjective component, the

prisoner must establish that the defendants “acted with deliberate indifference

to his conditions of confinement.” Harper v. Showers, 174 F.3d 716, 720 (5th Cir.

1999) (footnote omitted).

Conlin’s Eighth Amendment claim was properly dismissed because he did

not allege facts establishing the objective component of a conditions-ofconfinement claim. Although he argues that the loss of sleep he alleged

demonstrated a deprivation of a basic human need, Conlin has not shown an

egregious deprivation of a minimal life necessity that was so base or inhumane

as to give rise to a constitutional violation. See Palmer, 193 F.3d at 352; see also
No. 09-40286

3

Novak v. Beto, 453 F.2d 661, 665-66 (5th Cir. 1971). Instead, Conlin complains

of mere discomfort, which is insufficient. See Rhodes v. Chapman, 452 U.S. 337,

349 (1981). The district court’s judgment is affirmed. 

The district court’s dismissal of the instant lawsuit counts as a “strike” for

purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,

385-87 (5th Cir. 1996). Conlin has one previous strike. See Conlin v. Lange, No.

07-20164 (5th Cir. 2007) (unpublished). Accordingly, Conlin is cautioned that

if he accumulates three strikes under § 1915(g), he may not 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). 

AFFIRMED; THREE-STRIKES WARNING ISSUED.