Nelson v. Lumpkin, et al

United States Court of Appeals
for the Fifth Circuit

No. 20-50291

Ardell Nelson, Jr.,

Plaintiff—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal
Justice, Correctional Institutions Division; David
Crain, Judge; Margaret Moore, District Attorney,

Defendants—Appellees.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:20-CV-222

Before Jones, Costa, and Wilson, Circuit Judges.
Per Curiam:*
Ardell Nelson, Jr., Texas prisoner # 482188, moves for leave to
proceed in forma pauperis (IFP) to appeal the district court’s dismissal
without prejudice of his 42 U.S.C. § 1983 complaint pursuant to the three-

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 20, 2020

Lyle W. Cayce
Clerk
Case: 20-50291 Document: 00515609290 Page: 1 Date Filed: 10/20/2020

No. 20-50291
2
strikes provision of 28 U.S.C. § 1915(g). Under § 1915(g), a prisoner may not
proceed IFP in a civil action or in an appeal of a judgment in a civil action if
he has, on three or more occasions while incarcerated, brought an action or
appeal that was dismissed as frivolous or for failure to state a claim, unless
the prisoner is under imminent danger of serious physical injury. Nelson has
failed to demonstrate that he was under imminent danger of serious physical
injury at the time he sought to file his complaint in the district court or
proceed with his appeal. See § 1915(g); Baños v. O’Guin, 144 F.3d 883, 885
(5th Cir. 1998). His conclusional allegations regarding a 2017 inmate assault
and his past exposure to illness are insufficient to establish that he was in
imminent danger of serious physical injury at the relevant times. See
§ 1915(g); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Baños, 144 F.3d at 884-
85.
Thus, Nelson’s motion for leave to proceed IFP is DENIED, and the
appeal is DISMISSED as frivolous. See 5th Cir. R. 42.2; Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Case: 20-50291 Document: 00515609290 Page: 2 Date Filed: 10/20/2020