United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
Clerk
No. 05-60911
Conference Calendar
KENNETH D. GANDY,
Plaintiff-Appellant,
versus
JOHN LEXINGTON, CEO of Vibe Magazines,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:05-CV-100
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Kenneth D. Gandy, Mississippi prisoner # 94933, appeals from
the district court’s judgment dismissing his 42 U.S.C. § 1983
complaint as frivolous. 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
*
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this opinion should not be published and is not precedent except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. 05-60911
-2-
as strikes under the Prison Litigation Reform Act. See Adepegba
v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). We previously
noted that Gandy has accumulated three strikes under 28 U.S.C.
§ 1915(g) and barred him 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. Gandy v. Jiffy Fulfillment, Inc., No. 05-60959,
2007 WL 519840 (5th Cir. Feb. 13, 2007). Moreover, we warned
Gandy that further sanctions might be imposed should he fail to
withdraw any pending appeals that are frivolous. Id. We
therefore impose a monetary sanction of $100 against Gandy,
payable to the clerk of this court. 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 Gandy unless Gandy submits proof of satisfaction of this
sanction. If Gandy 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.
APPEAL DISMISSED; SANCTION IMPOSED.