Harris v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004

Charles R. Fulbruge III
Clerk
No. 04-50212
Conference Calendar

MICHAEL WAYNE HARRIS,

Plaintiff-Appellant,

versus

JANIE COCKRELL, Etc.; ET AL.,

Defendants,

JOHNNIE SMITH, also known as W. Smith, Dr.; MONTE SMITH, also
known as FNU Smith, RN; HOWARD BENNET, also known as FNU Bennett,
Physician’s Assistant, also known as Howard Bennett; BILL
WILLIAMS, JR., also known as FNU Williams, RN,

Defendants-Appellees.

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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CV-46
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

Michael Wayne Harris, Texas prisoner # 782758, has applied

for leave to proceed in forma pauperis (“IFP”) in this appeal

from the magistrate judge’s order denying his motion for

appointment of counsel. See Baugh v. Taylor, 117 F.3d 197, 202

(5th Cir. 1997). A trial court is not required to appoint

*
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this opinion should not be published and is not precedent except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. 04-50212
- 2 -

counsel for an indigent plaintiff asserting a 42 U.S.C. § 1983

claim except in exceptional circumstances. Ulmer v. Chancellor,

691 F.2d 209, 212 (5th Cir. 1982). Harris’s arguments do not

demonstrate that this case is in any way “exceptional.” See id.

The motion for leave to proceed IFP is DENIED.

Harris’s appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR. R.

42.2. We caution Harris that the dismissal of this appeal as

frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir. 1996).

If Harris accumulates three strikes under 28 U.S.C. § 1915(g), he

will not be permitted 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 serious physical

injury. See 28 U.S.C. § 1915(g).

Harris’s motion to stay the district court proceedings

pending the resolution of the appeal is DENIED AS MOOT.

IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED;

MOTION TO STAY DISTRICT COURT PROCEEDINGS DENIED AS MOOT.