Summary
In Flores v. Livingston, 406 F.App'x 931 (5th Cir. Dec. 27, 2010), the Fifth Circuit stated that the plaintiff "did not allege that he was treated differently from similarly situated prisoners with respect to the investigation of the incident or of the grievances or that the defendants engaged in purposeful discrimination; thus, his complaint failed to state an equal protection claim and the magistrate judge did not err in dismissing this claim."
Summary of this case from Ray v. J WilsonOpinion
No. 10-20157 Summary Calendar.
January 4, 2011.
Vernon King, Jr., Beaumont, TX, pro se.
Appeals from the United States District Court for the Southern District of Texas, USDC No. 4:10-CV-238.
Before WIENER, PRADO, and OWEN, Circuit Judges.
Vernon King, Jr., Texas prisoner # 590316, moves this court for authorization to proceed in forma pauperis (IFP) following the district court's denial of leave to proceed IFP under the three-strikes provision of 28 U.S.C. § 1915(g) and dismissal of his 42 U.S.C. § 1983 complaint. 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 the prisoner has, on three or more prior 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 imminent danger of serious physical injury. § 1915(g). The determination whether a prisoner is under "imminent danger" must be made at the time the prisoner seeks to file his suit in district court or to proceed with his appeal, or when he files a motion to proceed IFP. Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998).
King's allegations cannot show that he is under imminent danger of serious physical injury from the alleged actions of these defendants. King has failed to show that he should be allowed to proceed IFP under § 1915(g) on appeal and that his appeal presents a nonfrivolous issue. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). King's motion for leave to proceed IFP is denied.
The facts surrounding the IFP decision are inextricably intertwined with the merits of the appeal. See e.g. Bough v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Accordingly, the appeal of the judgment of the district court presents no nonfrivolous issues, and the appeal is dismissed as frivolous. 5TH CIR. R. 42.2.
IFP DENIED; APPEAL DISMISSED.