Holloway v. Kyle ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10076
Summary Calendar
MICHAEL JAMES HOLLOWAY,
Plaintiff-Appellant,
versus
JACK W. KYLE ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:96-CV-468
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August 26, 1997
Before GARWOOD, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Michael James Holloway, Texas prisoner # 3225491, appeals
the dismissal of his civil rights suit pursuant to 28 U.S.C.
§ 1915(e)(2)(B). He contends that the defendants violated his
constitutional rights by failing to provide at the Pampa
Intermediate Sanction Facility programs he asserts are required
by Texas law and available at other community residential
facilities.
*
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that this opinion should not be published and is not precedent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. 97-10076
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We have reviewed the record and brief and conclude
that Holloway has identified no error in the dismissal. See
Holloway v. Kyle, No. 2:96-CV-468 (N.D. Tex. Dec. 23, 1996).
Holloway’s appeal is frivolous and is DISMISSED. Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983); see 5th Cir. R. 42.2.
As noted by the district court in its order of dismissal,
this is not the first complaint or appeal filed by Holloway which
has been dismissed as frivolous. See Holloway v. Kyle, No. 3:96-
CV-2093 (N.D. Tex. Aug. 27, 1996) (civil rights complaint
dismissed by district court as frivolous and for failure to state
a claim); Holloway v. Kyle, No. 2:96-CV-02094 (N.D. Tex. Sep. 12,
1996) (district court dismissed complaint as frivolous).
A prisoner may not
bring a civil action or appeal a judgment in
a civil action or proceeding under this
section if the prisoner has, on 3 or more
prior occasions, while incarcerated or
detained in any facility, brought an action
or appeal in a court of the United States
that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a
claim upon which relief may be granted,
unless the prisoner is under imminent danger
of serious physical injury.
28 U.S.C. § 1915(g). Including the dismissal of this suit and
this appeal, Holloway has four "strikes." See Adepegba v.
Hammons, 103 F.3d 383, 386-88 (5th Cir. 1996). Therefore, except
for cases involving an imminent danger of serious physical
injury, § 1915(g) bars Holloway from proceeding further under
No. 97-10076
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§ 1915. He may proceed in subsequent civil cases under the fee
provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else.
We caution Holloway that, even if he pays the filing fee,
any additional frivolous appeals filed by him will invite the
imposition of sanctions. To avoid sanctions, Holloway is further
cautioned to review any pending appeals to ensure that they do
not raise arguments that are frivolous.
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR ORDERED; SANCTIONS
WARNING ISSUED.