IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 24, 2007
No. 07-10253
Conference Calendar Charles R. Fulbruge III
Clerk
MICHAEL ANTHONY DAVIS
Plaintiff-Appellant
v.
NFN BAKER, Mailroom Supervisor and Clerk, in her Individual and Official
Capacities
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-886
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Michael Anthony Davis, Texas prisoner # 872268, appeals the dismissal
of his pro se, in forma pauperis (IFP), 42 U.S.C. § 1983 complaint as frivolous
under 28 U.S.C. §§ 1915(e) and 1915A(b). Davis’s claim that a prison official
violated his constitutional rights by opening Davis’s incoming legal mail outside
his presence is not cognizable under § 1983. See Brewer v. Wilkinson, 3 F.3d
816, 825 (5th Cir. 1993).
*
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should not be published and is not precedent except under the limited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. 07-10253
Davis’s appeal lacks arguable merit, and it is dismissed as frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The
district court’s dismissal and the dismissal of the instant appeal count as strikes
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th
Cir. 1996). Davis also accumulated a strike in Davis v. Inmate Trust Fund, No.
A-03-CA-732-SS and a strike in Davis v. Baker, No. 4:07-CV-068-A. Accordingly,
Davis is now barred from proceeding IFP 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. See § 1915(g). Davis’s motions for the appointment
of counsel and for oral argument are denied.
APPEAL DISMISSED; MOTIONS DENIED; SANCTION IMPOSED.
2