Russell v. Ashcroft, et al

* 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this opinion should not be published and is not precedent except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.
** Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
United States Court of Appeals
Fifth Circuit
F I L E D
October 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40189
Conference Calendar
ROY LEE RUSSELL,
Plaintiff-Appellant,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL; KATHLEEN HAWKS, Director;
RONALD G. THOMPSON, Regional Director,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CV-159
--------------------
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Roy Lee Russell, federal inmate # 21767-009, proceeding pro
se and in forma pauperis, appeals the district court’s dismissal,
pursuant to 28 U.S.C. § 1915(e) for failure to state a claim, of
his Bivens** complaint. Russell raised a failure-to-protect
claim arising from an attack from another inmate.
A dismissal for failure to state a claim under § 1915(e)(2)
is reviewed under the same de novo standard of review applicable

-- 1 of 3 --

No. 05-40189
-2-
to dismissals made pursuant to FED. R. CIV. P. 12(b)(6).
See Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
Russell did not sufficiently allege that the conditions of his
incarceration posed a substantial risk of serious harm, and he
did not allege that prison officials were deliberately
indifferent to his need for protection. Farmer v. Brennan,
511 U.S. 825, 837, 847 (1994). As a result, the district court
did not err in dismissing Russell’s complaint.
Russell asserts that the district court erred in failing to
conduct a hearing or order the completion of a questionnaire to
allow him to expand on his claims. Pursuant to the screening
function of 28 U.S.C. § 1915A, the district court acted within
its authority when it dismissed Russell’s complaint without
conducting a hearing or ordering the completion of a
questionnaire.
Russell further asserts that the district court erred in
denying his motion to appoint counsel. Russell’s case does not
present the type of exceptional circumstances that warrant the
appointment of counsel; accordingly, the district court did not
abuse its discretion in denying Russell’s motion to appoint
counsel. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987);
Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).
The judgment of the district court is affirmed.
The district court’s dismissal for failure to state a
claim counts as one strike under 28 U.S.C. § 1915(g). See

-- 2 of 3 --

No. 05-40189
-3-
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). We
dismissed as frivolous a prior appeal filed by Russell from the
dismissal as frivolous of a complaint filed in the district
court. See Russell v. Hawks, No. 02-40172 (5th Cir. Aug. 21,
2002) (unpublished). At that time Russell was informed that he
had accumulated two strikes under § 1915(g) and was warned of the
sanction that would be imposed if he acquired a third strike.
Russell has now accumulated at least three strikes. Therefore,
Russell may not proceed in forma pauperis in any civil action or
appeal filed while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury.
See § 1915(g).
AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED.

-- 3 of 3 --