Davis v. King

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 9, 2001
• Docket: 00-10923
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10525 Summary Calendar

BRIAN ANTHONY DAVIS,

Plaintiff-Appellant,

versus

EDWIN V. KING, Etc.; ET AL.,

Defendants,

MARK D. MCBRIDE, Attorney,

Defendant-Appellee, ----------------- CONSOLIDATED WITH No. 00-10768 ----------------- BRIAN ANTHONY DAVIS,

EDWIN V. KING, Honorable; ROY LEE STACY, Attorney; Lawrence B. MITCHELL, Attorney; MARK D. MCBRIDE, Attorney,

Defendants-Appellees, ------------------ CONSOLIDATED WITH No. 00-10923 ----------------- BRIAN ANTHONY DAVIS,

EDWIN V. KING, Etc.; ET AL., No. 00-10525 -2-

LAWRENCE B. MITCHELL, Attorney,

Defendant-Appellee.

------------------- Appeals from the United States District Court for the Northern District of Texas USDC No. 3:99-CV-1280-D -------------------- April 6, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Brian Anthony Davis (Davis), federal prisoner # 32832-

083, argues the district court erred in dismissing his civil rights

actions under Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971), for failure to state a

claim under Fed. R. Civ. P. 12(b)(6). Davis's motion to file his

reply brief out-of-time is DENIED.

This court reviews de novo a district court's ruling on

a motion to dismiss for failure to state a claim. Shipp v.

McMahon, 234 F.3d 907, 911 (5th Cir. 2000). The district court did

not err in dismissing Davis's claims for failing to adequately

allege a conspiracy claim. See Lynch v. Cannatella, 810 F.2d 1363,

1370 (5th Cir. 1987); Cinel v. Connick, 15 F.3d 1338, 1343 (5th

Cir. 1994). Neither was the dismissal of the claims against the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10525 -3-

prosecutor error. See Imbler v. Pachtman, 424 U.S. 409, 430

(1976); Bruce v. Wade, 537 F.2d 850, 852 (5th Cir. 1976).

Davis’s appeal is without arguable merit and is

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Because the appeal is frivolous, it is DISMISSED. See 5th

Cir. R. 42.2. The dismissal of this appeal as frivolous and the

district court's dismissal of this lawsuit for failure to state a

claim constitute two strikes for purposes of the 28 U.S.C.

§ 1915(g) bar. Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996). We caution Davis that once he accumulates three strikes, he

may not proceed in forma pauperis 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.

DISMISSED AS FRIVOLOUS; WARNING ISSUED; Motion to file

reply brief out-of-time DENIED.