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Morrison v. Bacon, 01-41242 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 01-41242 Visitors: 12
Filed: Apr. 12, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-41242 Conference Calendar WILLIE JAMES MORRISON, Plaintiff-Appellant, versus SELESTER D. BACON, Captain; BRADLEY K. HUTCHINSON, Lieutenant; DENICIA S. JEFFERSON; GREGORY MCCARDLE, Sergeant - Gang Task Force, Defendants-Appellees. - Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:00-CV-46 - April 11, 2002 Before SMITH, DeMOSS, and PARKER, Circuit Judges. PER CURIAM:* Willie James Morrison
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 01-41242
                         Conference Calendar



WILLIE JAMES MORRISON,

                                          Plaintiff-Appellant,

versus

SELESTER D. BACON, Captain; BRADLEY K. HUTCHINSON,
Lieutenant; DENICIA S. JEFFERSON; GREGORY MCCARDLE,
Sergeant - Gang Task Force,

                                          Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 9:00-CV-46
                       --------------------
                           April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Willie James Morrison (“Morrison”), Texas state prisoner

# 312996, appeals the district court’s dismissal of his 42 U.S.C.

§ 1983 civil rights complaint as frivolous and for failure to

state a claim upon which relief may be granted.   Morrison alleged

that the defendants failed to protect him from a threatened

assault by gang members.   Morrison argues that he was returned to

the general population after the defendants determined that there



     *
        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that this opinion should not be published and is not precedent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. 01-41242
                                  -2-

was insufficient evidence which warranted placing Morrison in

protective custody.

     Because Morrison has not shown that the defendants were

aware of a substantial risk that he would be assaulted by gang

members and disregarded that risk by failing to take reasonable

measures to abate it, Morrison has not shown that the district

court erred in dismissing his complaint.     See Farmer v. Brennan,

511 U.S. 825
, 847 (1994).

     Morrison’s appeal is without arguable merit and is

frivolous.   See Howard v. King, 
707 F.2d 215
, 219-20 (5th Cir.

1983).   Because the appeal is frivolous, it is dismissed.     See

5TH CIR. R. 42.2.   The dismissal of this appeal and the dismissal

by the district court each count as a “strike” for the purposes

of 28 U.S.C. § 1915(g).     See Adepegba v. Hammons, 
103 F.3d 383
,

387 (5th Cir. 1996).    We note that Morrison has at least one

other strike against him.    See Morrison v. Mack, No. 5:97-CV-293

(E.D. Tex. April 2, 1998).    By accumulating three strikes,

Morrison is barred from proceeding in forma pauperis in any

subsequent 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).

     APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR INVOKED.

Source:  CourtListener

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