*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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

April 28, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-11117

Summary Calendar

 

DAVID JAMES HENDERSON,

Plaintiff-Appellant,

versus

MID STATES SERVICES, INC.; 

TARRANT COUNTY JAIL MEDICAL STAFF;

O. JOHNSON, Lieutenant, 

Tarrant County Sheriff Department,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:02-CV-751-Y 

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

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

David James Henderson, Texas prisoner number 0346315, appeals

the district court’s dismissal of his 42 U.S.C. § 1983 suit as

frivolous and for failure to state a claim. Henderson also moves

this court for the appointment of counsel. His motion for the

appointment of counsel is DENIED.
No. 02-11117

-2-

“To plead a constitutional claim for relief under § 1983, [a

plaintiff must] allege a violation of a right secured . . . by the

Constitution or laws of the United States and a violation of that

right by one or more state actors.” Johnson v. Dallas Indep. Sch.

Dist., 38 F.3d 198, 200 (5th Cir. 1994). We review the district

court’s dismissal of Henderson’s suit under the de novo standard.

Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). Henderson

has not shown that the district court erred in dismissing his

claims against defendant Mid States Services, Inc., as he has not

shown that this defendant violated his constitutional rights. 

Henderson likewise has not shown that the district court erred

in dismissing his claims against the Medical Department of the

Tarrant County Jail. He has not shown that the Medical Department

is a legal entity amenable to suit, nor has he shown that his

alleged injuries were due to any county policy or custom. See

Monell v. Department of Soc. Servs., 436 U.S. 658, 690 (1978);

Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 1991).

Finally, Henderson has not shown that defendant Johnson violated

his Eighth Amendment rights, as he has not shown that Johnson was

aware of a substantial risk to his health and ignored this risk.

See Farmer v. Brennan, 511 U.S. 825, 847 (1994). 

Henderson has not shown that the district court erred in

dismissing his § 1983 suit as frivolous and for failure to state a

claim. Accordingly, his appeal is without arguable merit and is

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
No. 02-11117

-3-

1983). This dismissal of a frivolous appeal constitutes one strike

against Henderson for purposes of 28 U.S.C. § 1915(g), as does the

district court’s dismissal of his complaint. See Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996). If one other district

court action or appeal filed by Henderson is dismissed as

frivolous, he will be barred from bringing a civil action or appeal

as a prisoner proceeding in forma pauperis unless he is under

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

1915(g). 

MOTION FOR APPOINTMENT OF COUNSEL DENIED. APPEAL DISMISSED AS

FRIVOLOUS. 5TH CIR. R. 42.2. SANCTIONS WARNING ISSUED.