United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 13, 2007
Charles R. Fulbruge III
Clerk
No. 05-60959
Conference Calendar
KENNETH GANDY,
Plaintiff-Appellant,
versus
JIFFY FULFILLMENT, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:05-CV-99
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Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Kenneth Gandy, Mississippi prisoner # 94933, appeals from
the district court’s judgment dismissing his 42 U.S.C. § 1983
complaint for failure to state a claim. The district court did
not err by dismissing Gandy’s complaint; Gandy may not proceed
under § 1983 against an entity that is not acting under color of
state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
The dismissal of this appeal and the district court’s
dismissal of Gandy’s complaint for failure to state a claim count
as strikes under the Prison Litigation Reform Act. Adepegba v.
*
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this opinion should not be published and is not precedent except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. 05-60959
-2-
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Gandy already has
two countable strikes in the district court. See Gandy v. Paper
Wings, No. 4:05-CV-00101-TSL-AGN (S.D. Miss. July 8, 2005); Gandy
v. Pierce, No. 2:05-CV-00111-KS-JMR (S.D. Miss. May 31, 2005).
Because Gandy has accumulated at least three strikes under 28
U.S.C. § 1915(g), he is barred from proceeding in forma pauperis
in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of
serious physical injury. § 1915(g). Gandy is warned that
additional sanctions may be imposed if he does not withdraw any
pending appeals that are frivolous.
APPEAL DISMISSED; 28 U.S.C. § 1915 BAR IMPOSED; SANCTIONS
WARNING IMPOSED.