IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-41195
Conference Calendar
REYES FLORES,
Plaintiff-Appellant,
versus
MICHAEL UNIT; TEXAS DEPARTMENT OF CRIMINAL JUSTICE -
INSTITUTIONAL DIVISION COMPANY DEPARTMENTS,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:96-CV-716
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December 9, 1997
Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Reyes Flores, # 615077, appeals the dismissal of his 42
U.S.C. § 1983 action as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). Flores argues that the district court erred
by dismissing his complaint pursuant to § 1915(e) before issuance
of a summons pursuant to Fed. R. Civ. P. 4 and absent a motion to
dismiss; that the district court erred in dismissing his
complaint for failure to state a claim because the named
*
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that this opinion should not be published and is not precedent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.
No. 96-41195
-2-
defendant was not amenable to suit; and that the district court
erred in applying § 1915(e)(2)(B)(i) because it is
unconstitutional on its face and as applied to this action.
We have reviewed the record and the district court's opinion
and found no error in the reasoning of the district court in the
dismissal of Flores’ complaint. See Flores v. Michael Unit, CA
No. 6:96cv716 (E.D. Tex. Nov. 5, 1996). Flores’ appeal is
without arguable merit and, thus, frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is DISMISSED. See 5th Cir. R. 42.2.
Flores is hereby put on notice that the dismissal of this
appeal as frivolous constitutes his third strike under the PLRA
and that he may not proceed IFP in any civil action or appeal
filed while he is in prison unless he “is under imminent danger
of serious physical injury.” 28 U.S.C. § 1915(g); Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1997).
APPEAL DISMISSED.