Charlie Flentroy v. Rick Thaler , 581 F. App'x 358 ( 2014 )


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  •      Case: 14-40308      Document: 00512752219         Page: 1    Date Filed: 08/29/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 14-40308
    Fifth Circuit
    FILED
    August 29, 2014
    CHARLIE FLENTROY,                                                          Lyle W. Cayce
    Clerk
    Plaintiff-Appellant
    v.
    RICK THALER, Individually and in his/her official capacity; BRAD
    LIVINGSTON, Individually and in his/her official capacity; NANCY
    MITCHELL, Individually and in his/her official capacity; RUTH BROUWER,
    Individually and in his/her official capacity,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 9:13-CV-296
    Before PRADO, OWEN, and GRAVES, Circuit Judges.
    PER CURIAM: *
    Charlie Flentroy, Texas prisoner # 1126349, moves for leave to proceed
    in forma pauperis (IFP) to appeal the district court’s dismissal of his 
    42 U.S.C. § 1983
     complaint pursuant to the three-strikes provision of 
    28 U.S.C. § 1915
    (g).
    He also moves for the appointment of appellate counsel.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40308     Document: 00512752219      Page: 2   Date Filed: 08/29/2014
    No. 14-40308
    Our review of the cases relied upon by the district court confirms that
    Flentroy had at least three prior civil rights complaints or appeals dismissed
    as frivolous or for failure to state a claim and, thus, he has three strikes. See
    § 1915(g); Flentroy v. Klock, No. 9:11-cv-5 (E.D. Tex. June 23, 2011); Flentroy
    v. Oliver, No. 9:11-cv-7 (E.D. Tex. Feb. 8, 2011); Flentroy v. Lamb, No. 9:11-cv-
    21 (E.D. Tex. May 24, 2011); Flentroy v. Lamb, 467 F. App’x 291, 291-92 (5th
    Cir. 2012). Contrary to Flentroy’s assertion, the partial dismissal of his § 1983
    complaint as frivolous and for failure to state a claim in Flentroy, No. 9:11-cv-
    21, counts as a strike. See Adepegba v. Hammons, 
    103 F.3d 383
    , 387-88 (5th
    Cir. 1996); Patton v. Jefferson Correctional Center, 
    136 F.3d 458
    , 462-63 (5th
    Cir. 1998).
    Flentroy has failed to demonstrate that he was under imminent danger
    of serious physical injury at the time that he sought to file his complaint in the
    district court, proceed with his appeal, or move to proceed IFP. See § 1915(g);
    Banos v. O’Guin, 
    144 F.3d 883
    , 884 (5th Cir. 1998). His allegation that he
    might be seriously injured at an indefinite point in the future if he has to travel
    in a Texas Department of Criminal Justice transportation van is insufficient
    to establish that he was in imminent danger of serious physical injury at the
    relevant time. See § 1915(g); Banos, 144 F.3d at 884-85.
    Thus, Flentroy’s motion for leave to proceed IFP is DENIED. His motion
    for appointment of counsel also is DENIED. The appeal is DISMISSED as
    frivolous. See 5TH CIR. R. 42.2.
    2
    

Document Info

Docket Number: 14-40308

Citation Numbers: 581 F. App'x 358

Filed Date: 8/29/2014

Precedential Status: Non-Precedential

Modified Date: 1/13/2023