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

                                                               FILED
                                                            February 20, 2008
                               No. 07-50705
                            Conference Calendar           Charles R. Fulbruge III
                                                                  Clerk

EDWIN BERNARD PERKINS

                                         Plaintiff-Appellant

v.

GARY JOHNSON, Individually/Official Capacity as EXECUTIVE DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; DOUGLAS DRETKE,
Individually/Official Capacity as DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE; TEXAS ATTORNEY GENERAL GREG ABBOTT,
Individually/Official Capacity as Attorney General of State of Texas; TEXAS
TECHNICAL UNIVERSITY HEALTH SCIENCE CENTER; NANCY
MITCHELL; DANA BUTLER; UNIVERSITY OF TEXAS MEDICAL BRANCH
at GALVESTON; TEN UNKNOWN NAMED CORRECTIONAL OFFICIALS,
Individually/Official Capacity as Texas Department of Criminal Justice -
Institution Division Employees

                                         Defendants-Appellees


                Appeal from the United States District Court
                     for the Western District of Texas
                          USDC No. 6:05-CV-226


Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*



     *
      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should not be published and is not precedent except under the limited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. 07-50705

      Edwin Bernard Perkins, Texas prisoner # 699746, moves for leave to
proceed in forma pauperis (IFP) on appeal following the dismissal of his civil
rights action as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and the
district court’s certification that his appeal was not taken in good faith. Perkins
contends that the district court erred by holding him to a heightened pleading
standard and dismissing his action without first allowing him to develop the
factual basis for his complaint. He contends that his action was not frivolous,
but he provides only conclusional allegations of constitutional violations.
      Prisoners pursuing civil rights actions do not have a heightened pleading
standard as to their initial complaints beyond the notice pleading standards of
FED. R. CIV. P. 8. Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en
banc). However, a district court may conduct a hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985), or use some other procedural device
before any responsive pleadings are filed to determine whether a prisoner’s
complaint should be dismissed as frivolous. Schultea, 47 F.3d at 1434.
      Conclusional allegations do not give rise to constitutional claims. Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Perkins has not indicated any factual
basis for his claims that could have been developed any further, and he has not
demonstrated that the district court abused its discretion by not holding a
Spears hearing or using a similar procedural device in his case. See Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
      Perkins’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). His IFP motion is denied and his
appeal is dismissed. See 5TH CIR. R. 42.2.
      The district court’s dismissal of Perkins’s action and this court’s dismissal
of his appeal count as two strikes under § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). Perkins accumulated one more strike in
another case resulting in an appeal that was dismissed as frivolous. See Perkins


                                        2
                                 No. 07-50705

v. Johnson, 118 F. App’x 824, 825 (5th Cir. 2004).        As Perkins has now
accumulated three strikes, he is barred from proceeding IFP pursuant to § 1915
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
      IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.




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