Davis v. King ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10525
Summary Calendar
BRIAN ANTHONY DAVIS,
Plaintiff-Appellant,
versus
EDWIN V. KING, Etc.; ET AL.,
Defendants,
MARK D. MCBRIDE, Attorney,
Defendant-Appellee,
-----------------
CONSOLIDATED WITH
No. 00-10768
-----------------
BRIAN ANTHONY DAVIS,
Plaintiff-Appellant,
versus
EDWIN V. KING, Honorable; ROY LEE STACY, Attorney;
Lawrence B. MITCHELL, Attorney; MARK D. MCBRIDE,
Attorney,
Defendants-Appellees,
------------------
CONSOLIDATED WITH
No. 00-10923
-----------------
BRIAN ANTHONY DAVIS,
Plaintiff-Appellant,
versus
EDWIN V. KING, Etc.; ET AL.,
No. 00-10525
-2-
Defendants,
LAWRENCE B. MITCHELL, Attorney,
Defendant-Appellee.
-------------------
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CV-1280-D
--------------------
April 6, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Brian Anthony Davis (Davis), federal prisoner # 32832-
083, argues the district court erred in dismissing his civil rights
actions under Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971), for failure to state a
claim under Fed. R. Civ. P. 12(b)(6). Davis's motion to file his
reply brief out-of-time is DENIED.
This court reviews de novo a district court's ruling on
a motion to dismiss for failure to state a claim. Shipp v.
McMahon, 234 F.3d 907, 911 (5th Cir. 2000). The district court did
not err in dismissing Davis's claims for failing to adequately
allege a conspiracy claim. See Lynch v. Cannatella, 810 F.2d 1363,
1370 (5th Cir. 1987); Cinel v. Connick, 15 F.3d 1338, 1343 (5th
Cir. 1994). Neither was the dismissal of the claims against 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this opinion should not be published and is not precedent except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. 00-10525
-3-
prosecutor error. See Imbler v. Pachtman, 424 U.S. 409, 430
(1976); Bruce v. Wade, 537 F.2d 850, 852 (5th Cir. 1976).
Davis’s appeal is without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See 5th
Cir. R. 42.2. The dismissal of this appeal as frivolous and the
district court's dismissal of this lawsuit for failure to state a
claim constitute two strikes for purposes of the 28 U.S.C.
§ 1915(g) bar. Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). We caution Davis 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.
DISMISSED AS FRIVOLOUS; WARNING ISSUED; Motion to file
reply brief out-of-time DENIED.