Case: 12-10303       Document: 00512090104         Page: 1     Date Filed: 12/19/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 19, 2012
                                     No. 12-10303
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MICHAEL ANTHONY DAVIS,

                                                  Plaintiff-Appellant

v.

KAREN L. COLLINS; TERRI L. LASSITER; CHRISE WOLFE, Assistant United
States Attorney; MICHAEL J. WORLEY, Assistant United States Attorney,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-92


                         ON PETITION FOR REHEARING

Before CLEMENT, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       We construe the filing by Michael Anthony Davis, federal prisoner
# 33896-177, as a petition for panel rehearing. The petition is GRANTED, our
prior opinion is WITHDRAWN, and this opinion is SUBSTITUTED therefor.
       Davis was convicted in 2005 of conspiring to possess and distribute cocaine
base and distributing cocaine base and was sentenced to 360 months of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-10303     Document: 00512090104      Page: 2    Date Filed: 12/19/2012

                                  No. 12-10303

imprisonment. In February 2012, Davis filed a complaint under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 

(1971),
seeking damages and challenging alleged errors that occurred at trial and
sentencing. The district court denied relief but granted Davis leave to proceed
in forma pauperis (IFP) on appeal.
      Davis’s protestations to certain qualifying dismissals (strikes) under 28
U.S.C. § 1915(g) identified in our prior opinion, although correctly attributable
to another prisoner named Michael Anthony Davis, do not provide grounds for
the relief he seeks. Davis has in fact accumulated three strikes. On at least
three prior occasions while incarcerated, Davis brought a civil action or appeal
in a court of the United States that was dismissed as frivolous, malicious, or for
failure to state a claim upon which relief could be granted. § 1915(g); see Davis
v. United States, 4:11-cv-00064-Y (N.D. Tex. July 6, 2011) (unpublished); Davis
v. United States, 5:10-cv-01136-HE, 

at *1 (W.D. Okla. Feb. 18,
2011) (unpublished); and Davis v. United States, 426 F. App’x 648, No. 11-6072,

at *1 (10th Cir. June 14, 2011). Further, Davis has not
alleged, nor does the record reflect, that he is “under imminent danger of serious
physical injury.” § 1915(g).
      Accordingly, Davis’s IFP status is decertified, and the appeal is dismissed.
Davis has 15 days from the date of this opinion to pay the full appellate filing fee
to the clerk of the district court, should he wish to reinstate his appeal.
      REHEARING GRANTED; PREVIOUS OPINION WITHDRAWN; IFP
DECERTIFIED; APPEAL DISMISSED.




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