IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41583 Conference Calendar

BENNY HAYES,

Plaintiff-Appellant,

versus

CHARLES ADAMS, M.D.; ADJETEY K. LOMO, M.D.,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-97-CV-403 --------------------

October 20, 1999

Before JONES, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

Benny Hayes, Texas inmate #825298, challenges the district

court’s dismissal as frivolous of his civil rights complaint.

Hayes argues that his complaint has an arguable basis in law, and

he asserts that his allegations demonstrate deliberate

indifference by the defendants. We have carefully reviewed the

arguments and the appellate record. We conclude that the

district court did not abuse its discretion in dismissing the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-41583 -2-

complaint as frivolous. See McCormick v. Stalder,

(5th Cir. 1997). The medical care alleged by Hayes does not

amount to deliberate indifference by the defendants. See Farmer v.

Brennan,

(1994); Varnado v. Lynaugh,

(5th Cir. 1991). Furthermore, Hayes failed to allege more than a

mental injury. See Siglar v. Hightower,

(5th

Cir. 1997).

Hayes argues that the application of the Prison Litigation

Reform Act of 1995 (PLRA) to his complaint violates the Eighth

and Fourteenth Amendments. The argument is not properly before

the court. See Leverette v. Louisville Ladder Co.,

(5th Cir. 1999). Hayes’ argument concerning the lack of

opportunity to amend his complaint is without merit.

does not provide such a procedural safeguard. See Graves

v. Hampton,

, 318 n.12 (5th Cir. 1993).

Hayes asserts that he should have appointed counsel. To the

extent that he challenges the denial of appointed counsel in the district court, no abuse of discretion is detected. See Jackson

v. Dallas Police Dep’t,

(5th Cir. 1986). To

the extent that Hayes is requesting appointed appellate counsel,

the appeal fails to present exceptional circumstances warranting

such appointment. See

This appeal lacks arguable merit and is thus frivolous. See

Howard v. King,

(5th Cir. 1983). Because

the appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.

The dismissal of this appeal as frivolous counts as Hayes’ second No. 98-41583 -3-

strike for purposes of

(g). We caution Hayes

that once he accumulates three strikes, 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

(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.