Opinion
No. 10-40008 Summary Calendar.
June 21, 2010.
Vernon King, Jr., Beaumont, TX, pro se.
Appeal from the United States District Court for the Eastern District of Texas, USDC No. 1:09-CV-972.
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
Vernon King. Jr., Texas prisoner # 590316, moves this court for authorization to proceed in forma pauperis (IFP) following the district court's dismissal of his 42 U.S.C. § 1983 complaint under the three-strikes provision of 28 U.S.C. § 1915(g). Under § 1915(g), a prisoner may not proceed IFP in a civil action or in an appeal of a judgment in a civil action if the prisoner has, on three or more prior occasions, while incarcerated, brought an action or appeal that was dismissed as frivolous or for failure to state a claim, unless the prisoner is under imminent danger of serious physical injury. § 1915(g). The determination whether a prisoner is under "imminent danger" must be made at the time the prisoner seeks to file his suit in district court or to proceed with his appeal, or when he files a motion to proceed IFP. Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998).
King's allegations warrant a determination that he is under imminent danger of serious physical injury. Accordingly, King's motion for leave to proceed IFP is granted. We vacate the judgment and remand the case to the district court for further proceedings consistent with this opinion. No further briefing is required. See Clark v. Williams, 693 F.2d 381, 382 (5th Cir. 1982).
IFP GRANTED; VACATED AND REMANDED.