     Case: 11-60719     Document: 00511941489         Page: 1     Date Filed: 08/01/2012




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

                                                                            FILED
                                                                           August 1, 2012
                                     No. 11-60719
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

WENDELL DUNCAN,

                                                  Plaintiff-Appellant

v.

MERRIAN CARMICHAEL; J. BIRDTAIL; SANDRA ATWOOD; DOCTOR
UNKNOWN ABANGAN; VONNIE NEAL; DOCTOR JOE DOE; DOCTOR
JEFFCOAT; CHIEF PERRY; WARDEN VINES; WARDEN DALE CASKEY;
EVA EASLEY,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 4:10-CV-167


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Wendell Duncan, Mississippi prisoner # 32726, moves for leave to proceed
in forma pauperis (IFP) on appeal from the district court’s dismissal of his civil
rights suit without prejudice pursuant to 28 U.S.C. § 1915(g).                    Duncan’s
complaint alleged, among other things, that he was denied adequate medical
treatment with respect to glaucoma in his eyes.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60719    Document: 00511941489      Page: 2    Date Filed: 08/01/2012

                                    No. 11-60719

      A prisoner may not proceed IFP in a civil action or in an appeal of a
judgment in a civil action if the prisoner has, on three or more prior occasions,
while incarcerated, brought an action or appeal that was dismissed as frivolous,
malicious, or for failure to state a claim, unless the prisoner is under imminent
danger of serious physical injury. § 1915(g). Duncan does not dispute that he
has accumulated three strikes under § 1915(g) but contends that he meets the
exception under § 1915(g) because he is in imminent danger of serious physical
injury. Duncan has received prescription eye drops for his condition, and he has
not shown that he was under imminent danger of serious physical injury at the
time he filed his instant IFP motion. See Baños v. O’Guin, 144 F.3d 883, 884
(5th Cir. 1998). Thus, he is barred under § 1915(g) from proceeding IFP on
appeal.
      Duncan has also submitted a filing styled as a “Motion for Affirmative
Relief,” in which he seeks an injunction ordering his transfer from his current
prison unit on the ground that prison officials violated his procedural due
process rights and retaliated against him by placing him in segregation after he
refused to have his hair cut. Duncan’s claims in the “Motion for Affirmative
Relief” will not be considered because they are raised for the first time on appeal.
See Morin v. Moore, 309 F.3d 316, 323 (5th Cir. 2002); Daly v. Sprague, 675 F.2d
716, 722 (5th Cir. 1982).
      Accordingly, IT IS ORDERED that Duncan’s motion for leave to proceed
IFP and “Motion for Affirmative Relief” are DENIED, and the appeal is
DISMISSED. The appeal may be reinstated if Duncan pays the appeal fees
within 30 days of this dismissal.




                                         2
