King v. Livingston

212 F. App'x 260

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 11, 2006
• Docket: 05-41466
• Status: Unpublished

Opinion

ORDER

PER CURIAM: *

Gerald King, Texas prisoner #589458, has filed a motion for leave to proceed in forma pauperis on appeal following the district court’s dismissal of his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. § 1915(g). For the first time on appeal, King alleges that he was in imminent danger of serious physical injury , because the defendants failed to evacuate him during Hurricane Rita and because the defendants attempted to induce his death medically. King may not raise new allegations or legal theories for the first time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999).

King argues that he is in imminent danger of serious physical injury because he has been assaulted several times by the defendants and other inmates and because the defendants have attempted to cause him serious physical injury from the time of Hurricane Rita to the present. King fails to meet the showing required to avoid application of the three strikes bar under 28 U.S.C. § 1915(g). See Banos v. O’Guin, 144 F.3d 883, 884-85 (5th Cir.1998).

IT IS ORDERED that King’s IFP motion is DENIED. Because the district court properly applied 28 U.S.C. § 1915(g), King’s appeal is without merit and is DISMISSED. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983); 5th Cir. R. 42.2.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.