Opinion
No. 14-40632
04-09-2015
JAMES BELL MCCOY, Plaintiff-Appellant v. OWEN MURRAY; LANETTE LINTHICUM, Director, Texas Department of Criminal Justice Medical Services; PAM PACE, Practice Manager, Michael Unit, Defendants-Appellees
Appeal from the United States District Court for the Eastern District of Texas
USDC No. 6:14-CV-228
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
James Bell McCoy, Texas prisoner # 1299701, moves for leave to proceed in forma pauperis (IFP) to appeal the district court's dismissal of his 42 U.S.C. § 1983 complaint pursuant to the three-strikes provision of 28 U.S.C. § 1915(g). Under § 1915(g), a prisoner may not proceed IFP 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 malicious or for failure to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. § 1915(g).
McCoy does not dispute that he has three strikes but argues that the § 1915(g) bar should not apply because he is under imminent danger of a serious physical injury. In support of this contention, he states that he is in pain and has difficulty sleeping because of delays in receiving medication, and that there is a likelihood of unnecessary delay in receiving future medication from prison officials. McCoy has failed to demonstrate that he was under imminent danger of serious physical injury at the time that he filed his complaint in the district court, proceeded with his appeal, or moved to proceed IFP. See id.; Baños v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998); Arvie v. Tanner, 518 F. App'x 304, 304-05 (5th Cir. 2013).
McCoy's motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2; Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997). McCoy's motion to expedite the ruling on his motion for leave to proceed IFP is DENIED as moot.