Burden v. Unidentified Party, 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 7, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40781
Summary Calendar
DOUGLAS ALAN BURDEN,
Plaintiff-Appellant,
versus
UNIDENTIFIED PARTY, Head Supervisor/Director of ATAR
Spindletop Life Resources; DENA JOHNSON, Johnston’s Head
Counselor; MIKE FAIRLEY, Head Coordinator of Substance
Abuse; JAMES TABORWSKI, Probation Officer; ROSALYN COBBALD,
Director, ATAR Spindletop Life Resources,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-582
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Douglas Alan Burden, Texas prisoner # 1160823, appeals from
the dismissal of his 42 U.S.C. § 1983 complaint pursuant to
28 U.S.C. § 1915(e)(2)(b)(i), (ii) as frivolous and for failure to
state a claim and moves for appointment of counsel. He argues that
the district court erred in holding that he failed to state a claim
under the Equal Protection Clause. Burden’s motion to file a
supplemental reply brief is granted.
Affording the dismissal the requisite de novo review, Geiger

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v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005), we hold that Burden
has failed to allege facts that would tend to show that he was
intentionally treated differently from similarly situated clients
of the treatment program without a rational basis for the
distinction. See Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000). He has therefore indeed failed to state an equal
protection claim.
Burden’s appeal presents no “exceptional circumstances,” and
his motion for appointment of counsel is therefore denied. Ulmer
v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Because his
appeal is without arguable merit, it is dismissed. See 5TH CIR. R.
42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Burden is cautioned that the dismissal of this appeal as
frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g),
in addition to the strike for the district court’s dismissal. See
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). He is
further cautioned that if he accumulates three strikes under
§ 1915(g), he will not be able to 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
MOTION TO FILE SUPPLEMENTAL REPLY BRIEF GRANTED; SANCTION WARNING
ISSUED.

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