United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 14, 2006
Charles R. Fulbruge III
Clerk
No. 05-20694
Summary Calendar
JUAN ANTONIO VELASQUEZ,
Plaintiff-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION; TEXAS CHAIRMAN-TEXAS BOARD OF PARDONS &
PAROLES; TEXAS BOARD OF PARDONS AND PAROLES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-2210
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Antonio Velasquez, Texas prisoner # 1055310, appeals
the dismissal of his 42 U.S.C. § 1983 suit for failure to state a
claim and as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B).
Velasquez asserts that the district court was wrong to dismiss
his § 1983 complaint pursuant to § 1915(e) because he had not
sought leave to proceed in forma pauperis (IFP). Although
*
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this opinion should not be published and is not precedent except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. 05-20694
-2-
Velasquez had not moved to proceed IFP in the district court, the
magistrate judge ordered that the filing fee for his § 1983
complaint be paid in installments, and, thus, the magistrate
judge effectively granted Velasquez IFP status with respect to
his § 1983 suit. Moreover, any misapplication of § 1915(e)(2)(B)
was harmless given the existence of an alternative frivolity
provision applicable to fee-paid complaints. See § 1915A(b)(1).
Velasquez also argues that the district court erred in
ruling on the claim raised in his § 1983 suit because the claim
was pending first in another court via a 28 U.S.C. § 2254
petition. Velasquez has not shown that there was any motion
pending in the instant case which would have prevented the
district court from ruling on his § 1983 complaint. He offers no
other argument to challenge the district court’s dismissal of his
§ 1983 suit as malicious and for failure to state a claim.
Accordingly, Velasquez’s appeal is without arguable merit and is
dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983).
Velasquez is advised that the dismissal of this appeal as
frivolous and the district court’s dismissal of his § 1983 suit
each count as strikes for purposes of § 1915(g) and that if he
accumulates three strikes, he will not be able to proceed IFP in
any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of
No. 05-20694
-3-
serious physical injury. See Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996); § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.