          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                  June 4, 2009
                                No. 08-60403
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk
CHARLES TORNS, JR

                                            Plaintiff-Appellant

v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS; GENEVE BRELAND,
Technician for Mississippi Department of Corrections Inmate Legal Assistance
Program; CAPTAIN LOYD BEASLEY, SMCI Disciplinary Hearing Official;
RONALD KING, Superintendent for SMCI; CHRISTOPHER B EPPS,
COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS; OTHER
JOHN JANE DOES

                                            Defendants-Appellees


                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                            USDC No. 2:08-CV-61


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      The court sua sponte grants rehearing, withdraws its previous opinion in
this matter, and substitutes the following.
      Charles Torns, Jr., Mississippi prisoner # 32205, has filed a motion to
proceed in forma pauperis (IFP) on appeal following the district court’s denial of


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                    No. 08-60403

his motion to proceed IFP in that court in his civil rights action. Pursuant to
F ED. R. A PP. P. 24(a), this court may entertain a motion to proceed IFP on appeal
when the litigant has been denied leave to proceed IFP on appeal by the district
court.     A litigant may not proceed IFP on appeal unless he demonstrates
financial eligibility and the existence of a nonfrivolous issue for appeal. See
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
         The district court determined that Torns was barred from proceeding IFP
in his civil rights action because Torns had accumulated three strikes under 28
U.S.C. § 1915(g). Torns does not dispute that he has three strikes. Our review
of court records shows that Torns has accumulated strikes in the following
actions: (1) the dismissal, as frivolous, in Torns v. Fordice, No. 4:95-cv-398 (N.D.
Miss. June 10, 1996); (2) the dismissal, for failure to state a claim, in Torns v.
Dunn, No. 3:02-cv-00263 (S.D. Miss. April 30, 2002); and, (3) the dismissal, for
failure to state claim, in Torns v. State of Mississippi Department of Corrections,
No. 4:03-cv-410 (N.D. Miss. July 19, 2004).
         Under § 1915(g), a prisoner may not proceed IFP in a civil action or appeal
a judgment in a civil action or proceeding if he has on three or more prior
occasions, while incarcerated or detained in a 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.” § 1915(g).
         Torns contends that he suffers from cardiovascular hypertension disease.
He asserts that, since the alleged wrongful disciplinary conviction that was the
focus of his complaint, he has suffered anxiety, restless nights, nightmares,
headaches, chest pains, dizziness, visual problems, and numbness in the
extremities. He also contends that the fact of his confinement among prisoners
who do not have similar medical disabilities places him in imminent danger of
serious physical injury and causes him to live in constant fear and anxiety.

                                          2
                                  No. 08-60403

      “[A] prisoner with three strikes is entitled to proceed with his action or
appeal only if he is in imminent danger at the time that he seeks to file his suit
in district court or seeks to proceed with his appeal or files a motion to proceed
IFP.” Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998). Torns’s assertions
regarding his medical condition and the possibility of harm at the hands of other
inmates do not show that he faced an imminent danger of serious physical injury
at the relevant time. See id. Moreover, if is true that Torns has a serious
medical condition and that he is at risk of harm by other inmates, neither of
those threats stems from or is related to his claim that his civil rights were
violated in connection with his disciplinary conviction. See Judd v. Federal
Election Commission, No. 07-41033, 2009 WL 423966, *1 (5th Cir. Feb. 20, 2009).
      Torns, who has three strikes, has not shown that he is entitled to proceed
IFP on grounds that he is under imminent danger of serious physical injury. See
§ 1915(g). Therefore, Torns has not shown that he has a nonfrivolous issue for
appeal. See Carson, 689 F.2d at 586. Accordingly, Torns motion to proceed IFP
on appeal is denied, and the appeal is dismissed. See 5 TH C IR. R. 42.2.
      REHEARING        GRANTED       SUA    SPONTE;     PREVIOUS       OPINION
WITHDRAWN; IFP MOTION DENIED; APPEAL DISMISSED.




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