Conklin v. Director, Texas Department of Criminal Justice, Correctional Institutions Division

Case: 12-41010 Document: 00512243099 Page: 1 Date Filed: 05/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 15, 2013
No. 12-41010
Summary Calendar Lyle W. Cayce
Clerk
DAVID CONKLIN,
Plaintiff-Appellant
v.
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; STUART JENKINS, TDCJ
Parole Officer; MANAGEMENT TRAINING CORPORATION, Warden;
MANAGEMENT TRAINING CORPORATION, Assistant Warden; LAW
LIBRARY CLERK, Management Training Corporation; RICK C. THALER,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:11-CV-450
Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
David Conklin, Texas prisoner # 1789361, seeks leave to proceed in forma
pauperis (IFP) in his appeal of the district court’s dismissal of his 42 U.S.C.
§ 1983 action. He also requests an evidentiary hearing, appointment of counsel,
and injunctive relief. The district court dismissed his action pursuant to 28
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41010 Document: 00512243099 Page: 2 Date Filed: 05/15/2013
No. 12-41010
U.S.C. § 1915A(b)(1) as frivolous and for failure to state a claim. By moving for
leave to proceed IFP, Conklin is challenging the district court’s certification that
his appeal is not taken in good faith because it is frivolous. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(5).
We review the dismissal of the complaint de novo, accepting the facts
alleged in the complaint as true and viewing them in the light most favorable to
the plaintiff. See Green v. Atkinson, 623 F.3d 278, 279 (5th Cir. 2010). Conklin
has not demonstrated that the district court erred by dismissing his complaint
for failure to state a claim based on a finding that he failed to allege an actual
injury. See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis v. Casey,
518 U.S. 343, 350 (1996). Accordingly, we do not reach Conklin’s arguments
concerning the district court’s alternative grounds for dismissal.
Because Conklin has not demonstrated that his appeal would involve a
nonfrivolous issue, his motion for leave to proceed IFP is denied and the appeal
is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. His
requests for an evidentiary hearing, appointment of counsel, and injunctive relief
are also denied.
The district court’s dismissal of Conklin’s suit and this court’s dismissal
of his appeal as frivolous each count as a strike for purposes of § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Conklin has two
other strikes. See Conklin v. Gutierrez, No. 2:12-CV-20 (S.D. Tex. Apr. 19, 2012);
Conklin v. Walters, 70 F. App’x 491 (10th Cir. 2003). As Conklin now has at
least three strikes under § 1915(g), he is advised that he is no longer allowed to
proceed IFP in any civil action or appeal filed while he is detained or
incarcerated in any facility unless he is under imminent danger of serious
physical injury. See § 1915(g).
ALL OUTSTANDING MOTIONS DENIED; APPEAL DISMISSED;
§ 1915(g) SANCTION BAR IMPOSED.
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