Don White v. Mark Duff ( 2020 )


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  •      Case: 19-40294      Document: 00515491687         Page: 1    Date Filed: 07/16/2020
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 19-40294                           July 16, 2020
    Lyle W. Cayce
    DON RAY WHITE,                                                                   Clerk
    Plaintiff-Appellant
    v.
    MARK DUFF; TODD HARRIS,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 9:17-CV-207
    Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
    PER CURIAM: *
    Don Ray White, Texas prisoner # 512713, moves for leave to proceed in
    forma pauperis (IFP) to appeal the district court’s dismissal without prejudice
    of his 
    42 U.S.C. § 1983
     complaint pursuant to the three-strikes provision of 
    28 U.S.C. § 1915
    (g). Under § 1915(g), a prisoner may not proceed IFP in a civil
    action or in an appeal of a judgment in a civil action if he has, on three or more
    occasions while incarcerated, brought an action or appeal that was dismissed
    as frivolous or for failure to state a claim, unless the prisoner is under
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-40294     Document: 00515491687      Page: 2   Date Filed: 07/16/2020
    No. 19-40294
    imminent danger of serious physical injury. White has failed to demonstrate
    that he was under imminent danger of serious physical injury at the time he
    sought to file his complaint in the district court or proceed with his appeal. See
    § 1915(g); Baños v. O’Guin, 
    144 F.3d 883
    , 884 (5th Cir. 1998). His allegations
    that he was assaulted by his cellmate more than 18 months before filing this
    civil action and that he may suffer harm if he undergoes surgery to correct the
    injury to his arm resulting from that assault are insufficient to establish that
    he was in imminent danger of serious physical injury at the relevant times.
    See § 1915(g); Baños, 144 F.3d at 884–85.
    In addition, White has not established that the district court acted
    improperly by withdrawing authorization for White to proceed IFP based on
    the defendants’ motion to dismiss. To the extent that he is contending that a
    denial of IFP status would constitute discrimination based on his indigent
    status, we have rejected the argument that the three strikes bar of § 1915(g)
    violates a prisoner’s right of access to the courts or his equal protection rights.
    See Carson v. Johnson, 
    112 F.3d 818
    , 821–22 (5th Cir. 1997). Thus, White’s
    motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED as
    frivolous. See 5TH CIR. R. 42.2; Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir.
    1997).
    2
    

Document Info

Docket Number: 19-40294

Filed Date: 7/16/2020

Precedential Status: Non-Precedential

Modified Date: 7/16/2020