Banks v. Morris , 115 F. App'x 704 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-30557
Conference Calendar
TYRONE BANKS,
Plaintiff-Appellant,
versus
UNKNOWN MORRIS; UNKNOWN GRIMES; UNKNOWN HILL;
C. M. LENSING,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CV-1056-C
--------------------
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Tyrone Banks, Louisiana inmate # 109878, has filed a motion
in this court to proceed in forma pauperis (IFP) in the appeal of
the dismissal of his civil rights complaint under 28 U.S.C.
§ 1915(e)(2)(B)(ii) and 42 U.S.C. § 1997e for failure to state a
claim. Banks’s claim that he was served food loaf for seven days
does not implicate a liberty interest; he has not shown that he
will raise a nonfrivolous issue on appeal or that the district
court erred in certifying that his appeal was not taken in good
*
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this opinion should not be published and is not precedent except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. 04-30557
-2-
faith. See Sandin v. Conner, 515 U.S. 472, 484 (1995); Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, Banks’s
motion for leave to proceed IFP is DENIED, and his appeal is
DISMISSED as frivolous. Baugh v. Taylor, 117 F.3d 197, 202 n.24
(5th Cir. 1997); 5TH CIR. R. 42.2.
The dismissal of this appeal and the district court’s
dismissal of Banks’s complaint count as strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Banks previously earned a strike in another civil
rights action. See Banks v. Cain, No. 03-310-D-M1 (M.D. La. Aug.
12, 2003); Adepegba, 103 F.3d at 387-88. Because Banks has
accumulated three strikes under 28 U.S.C. § 1915(g), he is BARRED
from proceeding IFP 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 28 U.S.C.
§ 1915(g).
IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.