Floyd v. Lumpkin ( 2023 )

Case: 22-40693 Document: 00516637147 Page: 1 Date Filed: 02/07/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-40693
FILED
February 7, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Jalil Rajaii Floyd,
Plaintiff—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division; Bryan Collier, Executive Director,
Texas Department of Criminal Justice, Individual and official capacities;
Nicole Sandifer, Individual and official capacities; Vernon
Mitchell, Individual and official capacities; K. Harbin, Individual and
official capacities; Nina Tanner, Individual and official capacities;
Timothy Fitzpatrick, Chief of Classification; Individual and
official capacities; Lannette Linthicum, Director UTMB
Intake Mental Health; Individual and official capacities;
John Doe, (Poppoola); Jane Doe, (Eke),
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:22-CV-294
______________________________
Case: 22-40693 Document: 00516637147 Page: 2 Date Filed: 02/07/2023
No. 22-40693
Before Elrod, Graves, and Ho, Circuit Judges.
Per Curiam: *
Jalil Rajaii Floyd, Texas prisoner # 572644, moves for leave to appeal
in forma pauperis (IFP) from the dismissal of his 42 U.S.C. § 1983 civil rights
lawsuit as barred under 28 U.S.C. § 1915(g). Floyd asserts that Powledge
Unit officials failed to protect him from violent assault, in violation of his
Eighth Amendment rights, and he urges that he is under imminent danger of
serious physical injury as he continues to be subject to unsafe conditions and
possible violence due to the Powledge Unit’s ongoing policies of failing to
separate violent prisoners from elderly, nonviolent, disabled prisoners and
failing to secure kitchen scrap metals.
As the district court determined, Floyd’s allegations of past harm are
insufficient to show imminent danger within the meaning of § 1915(g). See
Baños v. O’Guin, 144 F.3d 883, 884-85 (5th Cir. 1998). His allegations of
possible future violence are conclusional and speculative and fail to
demonstrate the existence of a specific threat or a genuine impending
emergency. They therefore fail to allege that he faced imminent danger of
serious physical injury at the time that he filed his complaint, appeal, or IFP
motion. See id.Floyd has not shown that he is entitled to proceed IFP on appeal. See
§ 1915(g). He has also not shown that the district court erred by dismissing
the complaint based on the three-strikes bar. See Baños, 144 F.3d at 885.
Accordingly, the IFP motion is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24
(5th Cir. 1997); 5th Cir. R. 42.2. Floyd’s motion for the appointment of
counsel is similarly DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212
(5th Cir. 1982).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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