     Case: 18-20752      Document: 00514828821         Page: 1    Date Filed: 02/08/2019




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

                                                                                 FILED
                                      No. 18-20752                         February 8, 2019
                                                                            Lyle W. Cayce
THOMAS H. CLAY,                                                                  Clerk


                                                 Plaintiff-Appellant

v.

UTMBH CMC ESTELLE UNIT MEDICAL EMPLOYEES; LANNETTE
LINIHICUM, Texas Department of Criminal Justice Medical Director;
EARNESTINE B. JULYE, Medical Director; LVN DENNIS WALKER, CID;
RHONDA COKER, HG-IDS Director; CYNINTA HO, HG-IDS; DOCTOR J.
BLANTON; DOCTOR J. COLLIER; ESTELLE UNIT HIGH SECURITY
OFFICIALS NAMED,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CV-3233


Before DENNIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Thomas H. Clay, Texas prisoner # 1124123, has a history of filing
frivolous civil actions. He is barred under the three-strikes provision in 28
U.S.C. § 1915(g) from proceeding in forma pauperis (IFP) in any civil action



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20752

filed while incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. Clay seeks authorization to proceed IFP on
appeal from the district court’s dismissal of his civil action and the district
court’s denial of his Federal Rule of Civil Procedure 59(e) motion for
reconsideration of the dismissal decision.      Clay also moves this court to
construe his notice of appeal and IFP motion as petitions for a writ of
mandamus. That request is DENIED.
     Based on Brown v. Megg, 857 F.3d 287, 290-91 (5th Cir. 2017), Clay
argues that he does not have three strikes for purposes of § 1915(g). We held
in In re Clay, No. 17-20152, slip op. at 2 n.2 (5th Cir. Sept. 25, 2017)
(unpublished), “that, even under Brown, ‘Clay has three strikes.’” He may not
relitigate the issue. See Bradberry v. Jefferson Cty., Tex., 732 F.3d 540, 548
(5th Cir. 2013).
     Clay also argues that he is in imminent danger of serious physical injury.
However, his disagreements with the medical care he is receiving are
insufficient to show that he was in imminent danger when he filed his
complaint, appeal, or IFP motion. See Baños v. O’Guin, 144 F.3d 883, 884-85
(5th Cir. 1998).
      Accordingly, Clay’s motion for leave to proceed IFP is DENIED. Clay’s
appellate argument, that the district court erred in dismissing his civil
complaint based on a finding that he had three-strikes under § 1915(g), is
without arguable merit and thus frivolous. See Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). Clay’s appeal from his civil action is DISMISSED. See
5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 n.24.
      The dismissal of this appeal as frivolous counts as a strike under
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996),
abrogated in part on other grounds by Coleman v. Tollefson, 135 S. Ct. 1759,



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                                 No. 18-20752

1762-63 (2015). Clay is reminded of the three-strikes bar and is cautioned that
any future frivolous or repetitive filings in this court or any court subject to
this court’s jurisdiction may subject him to additional sanctions.
      MOTIONS        DENIED;    APPEAL      DISMISSED       AS   FRIVOLOUS;
SANCTION WARNING ISSUED.




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