     Case: 14-40308      Document: 00512752219         Page: 1    Date Filed: 08/29/2014




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

                                      No. 14-40308
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 29, 2014

CHARLIE FLENTROY,                                                          Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

RICK THALER, Individually and in his/her official capacity; BRAD
LIVINGSTON, Individually and in his/her official capacity; NANCY
MITCHELL, Individually and in his/her official capacity; RUTH BROUWER,
Individually and in his/her official capacity,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:13-CV-296


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Charlie Flentroy, Texas prisoner # 1126349, moves for leave to proceed
in forma pauperis (IFP) to appeal the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint pursuant to the three-strikes provision of 28 U.S.C. § 1915(g).
He also moves for the appointment of appellate counsel.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40308     Document: 00512752219      Page: 2   Date Filed: 08/29/2014


                                   No. 14-40308

      Our review of the cases relied upon by the district court confirms that
Flentroy had at least three prior civil rights complaints or appeals dismissed
as frivolous or for failure to state a claim and, thus, he has three strikes. See
§ 1915(g); Flentroy v. Klock, No. 9:11-cv-5 (E.D. Tex. June 23, 2011); Flentroy
v. Oliver, No. 9:11-cv-7 (E.D. Tex. Feb. 8, 2011); Flentroy v. Lamb, No. 9:11-cv-
21 (E.D. Tex. May 24, 2011); Flentroy v. Lamb, 467 F. App’x 291, 291-92 (5th
Cir. 2012). Contrary to Flentroy’s assertion, the partial dismissal of his § 1983
complaint as frivolous and for failure to state a claim in Flentroy, No. 9:11-cv-
21, counts as a strike. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996); Patton v. Jefferson Correctional Center, 136 F.3d 458, 462-63 (5th
Cir. 1998).
      Flentroy has failed to demonstrate that he was under imminent danger
of serious physical injury at the time that he sought to file his complaint in the
district court, proceed with his appeal, or move to proceed IFP. See § 1915(g);
Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998). His allegation that he
might be seriously injured at an indefinite point in the future if he has to travel
in a Texas Department of Criminal Justice transportation van is insufficient
to establish that he was in imminent danger of serious physical injury at the
relevant time. See § 1915(g); Banos, 144 F.3d at 884-85.
      Thus, Flentroy’s motion for leave to proceed IFP is DENIED. His motion
for appointment of counsel also is DENIED. The appeal is DISMISSED as
frivolous. See 5TH CIR. R. 42.2.




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