IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50634 Conference Calendar

ROBERT ROBINSON,

Plaintiff-Appellant,

versus

ROD RYAN, DR.; JIMMY STONE, Grievance Officer, McLennan County Jail; JOHNNY MYNAR, Captain; MARSHA RODDY, also known as NFN Marsh, Head Nurse; DARLENE LNU, Nurse,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-99-CV-386 -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Robert Robinson, Texas prisoner #894530, seeks leave to

proceed in forma pauperis (IFP) following a certification

pursuant to

(a)(3) that his appeal is taken in

bad faith. We note initially that the district court relied in

part on evidence outside of the pleadings when dismissing

Robinson’s complaint for failure to state a claim. The dismissal

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50634 -2-

operated as a grant of the defendants’ summary-judgment motion.

Washington v. Allstate Ins. Co.,

(5th Cir.

1990).

Robinson contends that some of the defendants were

deliberately indifferent to his serious medical needs; that jail

grievance procedures somehow were inadequate; and that telephone

policies violated his First Amendment rights. Robinson’s

allegations regarding his medical care suggest negligence at

most; he has failed to indicate a nonfrivolous issue regarding

medical care. See Varnado v. Lynaugh,

(5th

Cir. 1991). Robinson has failed to brief his grievance

contention for appeal. Brinkmann v. Dallas County Deputy Sheriff

Abner,

(5th Cir. 1987). Robinson did not

complain in the district court about jail telephone policies. We

will not consider his contention, which was not raised in the

district court. Leverette v. Louisville Ladder Co.,

(5th Cir. 1999), cert. denied,

(2000).

Robinson’s appeal is without arguable merit and is

frivolous. Howard v. King,

(5th Cir. 1983).

The dismissal of Robinson’s appeal counts as a “strike” for

purposes of

(g). Because the district court’s

dismissal for failure to state a claim acted as a grant of

summary judgment, the district court’s judgment does not count as

a “strike.” Robinson is cautioned that once he accumulates three

strikes, he will not be able to proceed IFP in any civil action

or appeal while he is imprisoned “unless [he] is under imminent

danger of serious physical injury.” § 1915(g). No. 00-50634 -3-

IFP DENIED. APPEAL DISMISSED. 5TH CIR. R. 42.2.