IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40581
Conference Calendar
WILLIAM STEED KELLEY,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-97-CV-459
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December 14, 1999
Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
William Steed Kelley, Texas prisoner # 457296, seeks
permission to proceed in forma pauperis (IFP) on appeal of the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights
action. The district court denied Kelley’s motion for leave to
proceed in forma pauperis (IFP) on appeal because he is barred
from proceeding IFP on appeal by 28 U.S.C. § 1915(g).
Kelley argues that the district court erred in treating his
complaint as a § 1983 action and in applying the Prison
*
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that this opinion should not be published and is not precedent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. 99-40581
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Litigation Reform Act (PLRA) to his action. Because Kelley is
challenging the condition of his confinement in administrative
segregation, the district court did not err in treating his
complaint as a § 1983 action and in applying the PLRA to his
action. See Cook v. Texas Dep’t of Criminal Justice Planning
Dep’t, 37 F.3d 166, 168 (5th Cir. 1994)(“Section 1983 is an
appropriate legal vehicle to attack unconstitutional parole
procedures or conditions of confinement.”).
This court has previously determined that while
incarcerated Kelley has had at least three actions dismissed as
frivolous or for failure to state a claim upon which relief may
be granted. See Kelley v. Johnson, No. 99-40404 (5th Cir. July
20, 1999). Accordingly, Kelley 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. § 1915(g); Adepegba
v. Hammons, 103 F.3d 383, 388 (5th Cir. 1997). Kelley alleges
that he being tortured and is currently suffering serious
physical and emotional/psychological injuries due to his
placement in administrative segregation. However, Kelley has not
alleged facts which indicate that he is in imminent danger of
serious physical injury. See § 1915(g). Therefore, § 1915(g)
applies to bar his appeal IFP, and his motion to appeal IFP is
denied. See Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998).
This court has previously rejected the argument now raised by
Kelley that the application of § 1915(g) has denied him access to
the courts. See Carson v. Johnson, 112 F.3d 818, 821-22 (5th
Cir. 1997).
No. 99-40581
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Kelley has 30 days from the date of this order to pay the
full appellate filing fee of $105 to the clerk of the district
court should be wish to reinstate his appeal.
Kelley’s motion for leave to file a motion for en banc
consideration in excess of the page limits and his motion for
en banc consideration are DENIED.
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
APPLIED; OTHER MOTIONS DENIED.