Davis v. Harris Cty Plce Dept

251 F. App'x 899

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 24, 2007
• Docket: 05-21062
• Status: Unpublished

Opinion

PER CURIAM: *

Michael Anthony Davis, Texas prisoner # 872268, appeals the dismissal of his pro se, in forma pauperis (IFP), 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. §§ 1915(e) and 1915A(b). Davis’s claim that a prison official violated his constitutional rights by opening Davis’s incoming legal mail outside his presence is not cognizable under § 1983. See Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir.1993).

Davis’s appeal lacks arguable merit, and it is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983); 5th Cir. R. 42.2. The district court’s dismissal and the dismissal of the instant appeal count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.1996). Davis also accumulated a strike in Davis v. Inmate Trust Fund, No. A-03-CA-732-SS and a strike in Davis v. Baker, No. 4:07-CV-068-A. Accordingly, Davis is now barred from proceeding IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). Davis’s motions for the appointment of counsel and for oral argument are denied.

APPEAL DISMISSED; MOTIONS DENIED; SANCTION IMPOSED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.