                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUNE 23, 2009
                             No. 08-17001                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 08-03514-CV-TWT-1

DAVID CHARLES SUTTON,


                                                           Plaintiff-Appellant,

                                  versus

DISTRICT ATTORNEY’S OFFICE,
of Gwinnett Superior Court,
STATE OF GEORGIA,
et al,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (June 23, 2009)

Before BIRCH, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:

      Plaintiff-appellant David Charles Sutton, a prisoner proceeding pro se,

appeals the district court’s sua sponte dismissal without prejudice of his Petition

for Injunctive Relief pursuant to 28 U.S.C. § 1915(g). For the following reasons,

we affirm.

      Section 1915(g), the three strikes provision, bars a prisoner, who has filed

three or more complaints that have been dismissed as frivolous or malicious or for

failure to state a claim, from filing a complaint in forma pauperis, unless the

prisoner is “under imminent danger of serious physical injury.” On appeal, Sutton

does not dispute that he has more than three strikes under section 1915(g). Sutton,

therefore, may not bring his action in forma pauperis unless he sufficiently alleges

that he is under imminent danger of serious physical injury. See Brown v.

Johnson, 387 F.3d 1344, 1349-50 (11th Cir. 2004) (holding that complaint

sufficiently alleged imminent danger of serious physical injury where prisoner

asserted that he was in danger of more serious afflictions if he continued to not be

treated for his HIV and hepatitis).

      Sutton filed his Petition for Injunctive Relief in forma pauperis, alleging that

during his 1997 criminal trial, the District Attorney’s Office of Gwinnett Superior

Court, the State of Georgia, and unnamed additional defendants wrongfully



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withheld evidence which Sutton alleged would have been favorable to his defense.

It is uncontested that the Petition did not allege that Sutton was in any imminent

danger of serious physical injury. Accordingly, after taking judicial notice of the

five prior cases filed by Sutton which were dismissed as frivolous, the district court

properly dismissed the Petition pursuant to the “three strikes” provision of

28 U.S.C. § 1915.

      In his brief on appeal, Sutton provides no argument regarding the district

court’s dismissal pursuant to § 1915(g), opting instead to argue the merits of his

underlying complaint. After commencing his appeal, however, Sutton submitted

an “Affidavit of Indigency,” in which he asserted that he is “in imminent physical

danger of growing older and is in grave danger of perhaps dying here in this prison

system.” He also asserted that his allegedly “illegal sentence and conviction” has

“endanger[ed his] physical health” by “causing him stress, anxiety, depression, and

further his life is deteriorating here inside this Georgia state prison for no reason at

all.” We conclude that these types of general assertions, even construed liberally,

are “insufficient to invoke the exception to § 1915(g) absent specific fact

allegations of ongoing serious physical injury, or of a pattern of misconduct

evidencing the likelihood of imminent serious physical injury.” Brown, 387 F.3d

at 1350 (citing Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)). Thus, we



                                            3
agree with the district court that Sutton has failed to establish that he is entitled to

the imminent danger exception to the three strike rule and we AFFIRM the district

court’s judgment.




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