     Case: 11-50008     Document: 00511552702         Page: 1     Date Filed: 07/27/2011




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

                                                                            FILED
                                                                            July 27, 2011
                                     No. 11-50008
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ERIC FLORES,

                                                  Plaintiff-Appellant

v.

UNITED STATES ATTORNEY                      GENERAL;         NORTHERN          ATLANTIC
EXTRADITION SERVICES,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:10-CV-256


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Eric Flores, formerly detained in the El Paso County Jail Annex,
challenges the district court’s dismissal of his pro se, in forma pauperis (IFP),
civil rights complaint as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). Section
1915(e)(2)(B) provides that a district court shall dismiss an IFP complaint, at
any time, if the district court determines that the action is frivolous. See
§ 1915(e)(2)(B)(i). A complaint lacks an arguable basis in fact and is factually


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 11-50008

frivolous when the allegations are fanciful, fantastic, and delusional or when
they “rise to the level of the irrational or the wholly incredible.” Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992).
      In the district court, Flores alleged that:
      [C]ertain executive employees of the federal government . . . are
      using advanced technology with a direct signal to the satellite in
      outer space that has the capability of calculating a genetic code to
      inflict upon the petitioner and his immediate relatives different
      types of genetic virus[es] that cause severe pain which was
      equivalent in intensity to organ failure, brain damage, impairment
      of body function, and death.

We observe that Flores’s claims are similar to those raised in a prior action, also
dismissed as frivolous, and that we affirmed that prior dismissal as frivolous.
See Flores v. U.S. Attorney Gen., 378 F. App’x 473 (5th Cir. 2010).
      The district court determined that Flores’s claims were “fanciful, fantastic,
delusional, and, therefore, baseless” or “irrational and ‘wholly incredible.’”
Flores repeats his wholly incredible allegations in his brief to this court. Flores’s
allegations lack an arguable basis in fact. See Denton, 504 U.S. at 32-33. The
district court therefore did not abuse its discretion in dismissing Flores’s
complaint as frivolous. See id.
      Flores’s appeal has no arguable merit, is frivolous, and is dismissed. See
5TH CIR. R. 42.2. Because Flores was incarcerated at the time that he filed the
instant complaint, the district court’s dismissal of Flores’s action as frivolous
counts as a strike for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Should Flores accumulate three strikes, he will not
be permitted to proceed IFP in any civil action or appeal filed while incarcerated
or detained in any facility unless he is under imminent danger of serious
physical injury. See § 1915(g).
      Flores is further cautioned that the filing of further frivolous appeals will
result in sanctions. These sanctions may include dismissal, monetary sanctions,


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                                   No. 11-50008

and restrictions on his ability to file pleadings in this court and any court subject
to this court’s jurisdiction. Flores is directed to review any other appeals that
may be pending in this court and to withdraw any appeal that is frivolous.
      All pending motions are denied.
      APPEAL DISMISSED AS FRIVOLOUS; MOTIONS DENIED; SANCTION
WARNINGS ISSUED.




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