Davis v. Clinton

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41438
Conference Calendar
THOMAS C. DAVIS, JR.,
Plaintiff-Appellant,
versus
WILLIAM J. CLINTON, President, United States,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:98-CV-560
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June 17, 1999
Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Thomas C. Davis, Jr., Texas inmate # 342624, proceeding pro
se and in forma pauperis (IFP), appeals from the district court’s
judgment dismissing his complaint against President William J.
Clinton and the United States as frivolous and for failure to
state a claim. Davis contends that President Clinton
participated in making discriminatory laws that prohibit disabled
prisoners from receiving Supplemental Security Income.
*
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that this opinion should not be published and is not precedent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.
No. 98-41438
-2-
Davis also contends that the district court abused its
discretion by denying his motion for appointment of counsel. The
district court did not abuse its discretion by denying Davis’
motion for appointment of counsel. See Ulmer v. Chancellor, 691
F.2d 209, 213 (5th Cir. 1982).
Davis does not address the district court’s reason for
dismissing his complaint, and thus, he has abandoned the only
issue for appeal. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Davis’ appeal is without arguable merit, is frivolous, and
is DISMISSED. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); see 5TH CIR. R. 42.2.
This is not the first complaint or appeal filed by Davis
that has been dismissed as frivolous. A prisoner may not
bring a civil action or appeal a judgment in
a civil action or proceeding under this
section if the prisoner has, on 3 or more
prior occasions, while incarcerated or
detained in any facility, brought an action
or appeal in a court of the United States
that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a
claim upon which relief may be granted,
unless the prisoner is under imminent danger
of serious physical injury.
28 U.S.C. § 1915(g). Including the district court’s dismissal of
Davis’ complaint and the dismissal of this appeal, Davis has four
"strikes." See Adepegba v. Hammons, 103 F.3d 383, 386-88 (5th
Cir. 1996).
The district court’s dismissal as frivolous of Davis’ 42
U.S.C. § 1983 complaint in Davis v. Collins, No. 6:92-CV-308
(E.D. Tex. Mar. 1992), and this court’s dismissal as frivolous of
No. 98-41438
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Davis’ appeal in Davis v. Collins, No. 97-41453 (5th Cir. Feb.
10, 1999), count as Davis’ first and second strikes. The
district court’s dismissal of Davis’ complaint as frivolous in
the instant case is Davis’ third strike. See Davis v. Clinton,
No. 6:98-CV-560 (E.D. Tex. Oct. 19, 1998). This court’s
dismissal of the instant appeal is the fourth strike.
Except for cases involving an imminent danger of serious
physical injury, Davis is BARRED under § 1915(g) from proceeding
further under § 1915. He may proceed in subsequent civil cases
under the fee provisions of 28 U.S.C. §§ 1911-14.
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR
ORDERED.