Bauer v. Bush ( 2000 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT
    
    
    
                                  No. 00-40720
                              Conference Calendar
    
    
    
    KENNETH JOSEPH BAUER,
    
                                               Plaintiff-Appellant,
    
    versus
    
    GEORGE W. BUSH, Governor, State of Texas; WAYNE SCOTT,
    Director, Texas Department of Criminal Justice; MICHAEL BELL,
    Warden, Bradshaw State Jail; TERRI HAGANS, Texas Department
    of Criminal Justice -- Institutional Division Coordinator,
    Bradshaw State Jail,
    
                                               Defendants-Appellees.
    
                           --------------------
              Appeal from the United States District Court
                    for the Eastern District of Texas
                           USDC No. 6:00-CV-216
                           --------------------
                             October 17, 2000
    
    Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
    
    PER CURIAM:*
    
         Kenneth Joseph Bauer, Bradshaw State Jail Facility
    
    (“Bradshaw”) prisoner #843305, appeals from the dismissal of his
    
    civil-rights action as frivolous, pursuant to 28 U.S.C.
    
    § 1915A(b)(1).    Bauer, who purports to represent a class of
    
    prisoners, contends that the shortage of guards and overcrowding
    
    in Texas prisons violate the Eighth Amendment.    He contends that
    
    regulations requiring a specific guard/prisoner ratio are not
    
         *
            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    that this opinion should not be published and is not precedent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.
                                 No. 00-40720
                                      -2-
    
    being followed; alleges that a large number of new prisoners had
    
    been sent to Bradshaw; and alleges that Bradshaw’s law library is
    
    inadequate.
    
         Bauer was not certified as a class representative.    He lacks
    
    standing to raise the rights of other prisoners.     See Hang On,
    
    Inc. v. City of Arlington, 
    65 F.3d 1248
    , 1251-52 (5th Cir. 1995).
    
         Bauer argues no facts suggesting that the shortage of guards
    
    or other general conditions of his incarceration posed a
    
    substantial risk of serious harm to him or that any of the named
    
    defendants knew about any such hazardous conditions and acted
    
    indifferently toward them.    Regarding a knife that was missing
    
    from a jail kitchen, Bauer’s allegations indicated that jail
    
    officials took action in response to the situation, though
    
    perhaps not as promptly as Bauer would have liked.    Bauer has
    
    failed to show deliberate indifference regarding the missing
    
    knife.    Neals v. Norwood, 
    59 F.3d 530
    , 533 (5th Cir. 1995).
    
         Bauer raises his contentions regarding the regulations
    
    governing the guard/prisoner ratio, the addition of new
    
    prisoners, and overcrowding generally for the first time on
    
    appeal.    To the extent he may seek to contend that he is being
    
    deprived of access to the courts due to an inadequate law
    
    library, he raises that claim too for the first time on appeal.
    
    We do not review claims not raised in the district court.
    
    Leverette v. Louisville Ladder Co., 
    183 F.3d 339
    , 342 (5th Cir.
    
    1999), cert. denied, 
    120 S. Ct. 982
     (2000).
    
         Bauer’s appeal is without arguable merit and is dismissed as
    
    frivolous.    Howard v. King, 
    707 F.2d 215
    , 219-20 (5th Cir. 1983).
                               No. 00-40720
                                    -3-
    
    The district court’s dismissal of the current case and this
    
    court’s dismissal of the appeal count as two “strikes” against
    
    Bauer for purposes of 28 U.S.C. § 1915(g).     Adepegba v. Hammons,
    
    
    103 F.3d 383
    , 387-88 (5th Cir. 1996).     We warn Bauer that once he
    
    attains three-strike status, he may not proceed in forma pauperis
    
    (IFP) in any civil action or appeal unless he “is under imminent
    
    danger of serious physical injury.”    § 1915(g).
    
         APPEAL DISMISSED.   5TH CIR. R. 42.2.