DENBY v. FNU BOSCO FNU FNU FNU FNU FNU FNU FNU FNU LNU FNU (2018)

Donis Lemond Denby, Texas prisoner # 655223, has filed a motion to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of his 42 U.S.C. § 1983 complaint. He seeks to challenge the district court’s determination that he was barred from proceeding IFP in the district court by the three-strikes provision of 28 U.S.C. § 1915(g).

Under § 1915(g), a prisoner may not proceed IFP 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 malicious or for failure to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. § 1915(g). “[A] prisoner with three strikes is entitled to proceed with his action or appeal only if he is in imminent danger at the time that he seeks to file his suit in district court or seeks to proceed with his appeal or files a motion to proceed IFP.” Baños v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998).

Denby asserts that he does not have three strikes under § 1915(g). However, a review of his litigation history demonstrates that he has at least three strikes. See Denby v. Windham, No. 2:10-CV-70 (N.D. Tex. May 13, 2011) (dismissed as frivolous); Denby v. Trent, No. 7:11-CV-157 (N.D. Tex. Mar. 9, 2015) (dismissed as frivolous); Denby v. Wages, No. 2:13-CV-6 (N.D. Tex. Aug. 29, 2013) (dismissed for failure to state a claim); and Denby v. Norwood, No. 7:13-CV-140, 2016 WL 2897461 (2016) (dismissed and strike imposed).

In addition, Denby’s speculative and conclusional allegations that he has suffered an undiagnosed concussion, that he sustained lasting damage to his throat, and that unchecked rectal bleeding is causing a deterioration in his health—leading to diabetes, sleep apnea, and possibly anoxic anemia—are insufficient to show that he was under imminent danger of serious physical injury at the time he filed his complaint, appeal, or IFP motion in this court. See § 1915(g); Baños, 144 F.3d at 884. Accordingly, Denby’s motion for leave to proceed IFP is denied. For the same reason, Denby’s appeal from the district court’s dismissal of his suit without prejudice as barred under § 1915(g) is frivolous and is dismissed. See 5th Cir. R. 42.2; Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997).

After Denby filed his brief in the instant case, this court issued a sanction warning to him. See Denby v. Bosco, 710 Fed.Appx. 205 (5th Cir. 2018). Denby is again reminded of the three-strikes bar and is cautioned that future frivolous or repetitive filings in this court or any court subject to this court’s jurisdiction may subject him to additional sanctions.

IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* 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.