United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-30427
Conference Calendar
CHARLES T. BUTLER,
Plaintiff-Appellant,
versus
RICHARD L. STALDER; BURL CAIN; KATHY FONTENOT; RICHARD IEYOUB;
STATE OF LOUISIANA; All present and past Corrections Officials in
both their Official and Individual capacities,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CV-624-B
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Before this court is Charles Butler’s (Louisiana prisoner
# 209995) request to proceed in forma pauperis (IFP) in his
appeal of the dismissal of his 42 U.S.C. § 1983 complaint for
failure to pay the filing fee. The district court denied Butler
leave to proceed IFP upon a finding that he had accumulated three
“strikes” under 28 U.S.C. § 1915(g).
*
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that this opinion should not be published and is not precedent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. 04-30427
-2-
Section 1915(g) provides that a prisoner may not proceed IFP
in a civil action or in an appeal of a judgment in a civil action
if the prisoner has, on three or more prior 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. The
determination as to whether a prisoner is in “imminent danger”
must be made at the time the prisoner seeks to proceed with the
appeal or files a motion to proceed IFP. Baños v. O’Guin,
144 F.3d 883, 884 (5th Cir. 1998).
Butler fails to show that he is in “imminent danger” as
required under § 1915(g). Accordingly, his motion for IFP is
DENIED and the appeal is DISMISSED. See 5TH CIR. R. 42.2.