IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30491 Summary Calendar

RYAN RICHARD; ET AL.,

Plaintiffs,

DENAUD EGANA,

Plaintiff-Appellant,

versus

JEFFERSON PARISH; HARRY LEE; GARY SCHWABE,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CV-1469-T -------------------- December 8, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Denaud Egana, Louisiana prisoner # 410663, challenges the

district court’s dismissal of his

lawsuit as

frivolous, pursuant to

(e)(2)(B). He asserts

that his exposure to fresh paint fumes for a two-week period

while the adjacent cellblock was being painted, causing him

headaches and dizziness, violated his constitutional rights.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-30491 -2-

This court has a duty, sua sponte, to determine at the

outset whether it has appellate jurisdiction. Mosley v. Cozby,

(5th Cir. 1987). It is unclear whether Egana’s

notice of appeal is timely because there is no indication in the

record that he placed it in the prison mail system within 30 days

of the district court’s judgment. However, because his appeal is

frivolous, remand for a determination on the issue would be

futile. See United States v. Alvarez,

(5th

Cir. 2000). Egana’s allegations do not show either that he was

exposed to a risk of substantial harm or that the appellees were

deliberately indifferent to any risk by failing to take

reasonable measures to abate it. See Farmer v. Brennan,

(1994); Ganther v. Ingle,

(5th Cir.

1996). Egana’s appeal is wholly without merit and is thus

frivolous. See Howard v. King,

(5th Cir.

1983); 5TH CIR. R. 42.2. Accordingly, his appeal is DISMISSED for

lack of jurisdiction. See Alvarez,

.

DISMISSED.