United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-10205
Summary Calendar
DON WAYNE BASEY,
Plaintiff-Appellant,
versus
JAMES D. MOONEYHAM; TINA VITOLO;
RICAHRD WATHEN; VIKKI WRIGHT; DANNY HORTON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:05-CV-6-R
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Don Wayne Basey, Texas prisoner # 1192566, has filed a
motion for leave to proceed in forma pauperis (IFP) on appeal and
an injunction and request for a transfer to a different housing
facility. The district court dismissed Basey’s 42 U.S.C. § 1983
civil rights complaint without prejudice as barred by the three-
strikes bar of 28 U.S.C. § 1915(g) and this court’s prior
sanction order.
*
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this opinion should not be published and is not precedent except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. 05-10205
-2-
For the first time in his IFP motion, Basey alleges that the
defendants have retaliated against him by administering
contaminated food trays, drugs, and psychotropic medication in
his food. He also argues for the first time that the defendants
have refused to adhere to a medical directive that he be placed
in a single cell, that he went on a “hunger strike,” that the
defendants refused to give him medical attention following
surgery, and that the defendants spread rumors about his
homosexuality. These arguments will not be addressed for the
first time on appeal. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999).
This court has previously sanctioned Basey for filing
frivolous pleadings, and Basey does not dispute that he received
three strikes under § 1915(g). See Basey v. Collins, No. 95-
40438 (5th Cir. Dec. 21, 1995) (unpublished); Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Therefore, to
proceed IFP on appeal, he must demonstrate that he is under
threat of imminent danger or serious bodily injury. See
§ 1915(g).
Basey renews his argument that his life endangerment request
has been ignored and that his attempt to get a transfer to a
different housing facility has been denied. Basey does not
allege in his IFP motion facts showing that he was under threat
of “serious bodily injury” at the time he filed his notice of
appeal or IFP motion. See Baños v. O’Guin, 184 F.3d 883, 884
No. 05-10205
-3-
(5th Cir. 1998). Accordingly, Basey is not entitled to proceed
IFP on appeal. See id.
In his request for an injunction and a prison unit transfer,
Basey argues that he is in “imminent danger” due to an assault by
prison officials on March 7, 2005. He filed his request for an
injunction on March 17, 2005. Basey names three specific
offenders and alleges that his neck injury required x-rays on
March 9 or 10, 2005. Basey argues that this attack was in
retaliation for the filing of his civil rights complaint.
There is no evidence in the record to support Basey’s
allegations. Rather, the record contains evidence of one housing
transfer at Basey’s request, a history of grievance responses
indicating that Basey had failed to abide by direct orders from
prison officials, and investigations finding that Basey’s life
endangerment claims were meritless. Although the record and
Basey’s exhibits include medical records, neither the exhibits
nor the records reference any March assault. Moreover, none of
Basey’s grievances mention his offenders from the March assault.
Therefore, Basey’s motion for an injunction is denied.
Basey’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Accordingly, the appeal is dismissed. See 5TH CIR.
R. 42.2.
In light of the prior sanctions imposed against Basey, he is
now ordered to pay sanctions in the amount of $255, the appellate
No. 05-10205
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filing fee cost, payable to the clerk of this court. See 5TH CIR.
R. 3. The clerk of this court and the clerks of all federal
district courts within this circuit are directed to refuse to
file any pro se civil complaint or appeal by Basey unless Basey
submits proof of satisfaction of this sanction. If Basey
attempts to file any further notices of appeal or original
proceedings in this court without such proof the clerk will
docket them for administrative purposes only. Any other
submissions which do not show proof that the sanction has been
paid will neither be addressed nor acknowledged.
IFP AND INJUNCTION DENIED; APPEAL DISMISSED AS FRIVOLOUS;
SANCTION IMPOSED.