Kelley v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 22, 1999
• Docket: 99-40404
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40404 Summary Calendar

WILLIAM STEED KELLEY; ET AL.,

Plaintiffs,

WILLIAM STEED KELLEY,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, ET AL.,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-98-CV-533 - - - - - - - - - - July 20, 1999

Before EMILIO M. GARZA, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

William Steed Kelley, Texas state prisoner #457296, seeks

leave to appeal in forma pauperis (IFP) from the district court’s

dismissal of his “Motion to perpetuate testimony” pursuant to

Fed. R. Civ. P. 27. Kelley’s motion for leave to appeal IFP is

DENIED. Kelley concedes that on at least three prior occasions

while incarcerated, he has brought an action in a United States

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40404 -2-

court that was dismissed as frivolous. Accordingly, Kelley may

not proceed IFP in any civil action or appeal filed while he is

in prison unless he “is under imminent danger of serious physical

injury.” 28 U.S.C. § 1915(g); Adepegba v. Hammons, 103 F.3d 383,

388 (5th Cir. 1997). Kelley’s allegations in this case do not

qualify.

This appeal is DISMISSED. Kelley has 15 days from the date

of this opinion to pay the full appellate filing fee of $105 to

the clerk of the district court, should he wish to reinstate his

appeal.

All other outstanding motions are also DENIED.

MOTIONS DENIED; 28 U.S.C. § 1915(g) BAR APPLIED; APPEAL

DISMISSED.