* 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this opinion should not be published and is not precedent except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.

** Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

United States Court of Appeals

Fifth Circuit

FILED

October 24, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40189

Conference Calendar

ROY LEE RUSSELL,

Plaintiff-Appellant,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL; KATHLEEN HAWKS, Director;

RONALD G. THOMPSON, Regional Director,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:04-CV-159

--------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges. 

PER CURIAM:*

Roy Lee Russell, federal inmate # 21767-009, proceeding pro

se and in forma pauperis, appeals the district court’s dismissal,

pursuant to 28 U.S.C. § 1915(e) for failure to state a claim, of

his Bivens** complaint. Russell raised a failure-to-protect

claim arising from an attack from another inmate. 

A dismissal for failure to state a claim under § 1915(e)(2)

is reviewed under the same de novo standard of review applicable
No. 05-40189

-2-

to dismissals made pursuant to FED. R. CIV. P. 12(b)(6). 

See Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). 

Russell did not sufficiently allege that the conditions of his

incarceration posed a substantial risk of serious harm, and he

did not allege that prison officials were deliberately

indifferent to his need for protection. Farmer v. Brennan,

511 U.S. 825, 837, 847 (1994). As a result, the district court

did not err in dismissing Russell’s complaint. 

Russell asserts that the district court erred in failing to

conduct a hearing or order the completion of a questionnaire to

allow him to expand on his claims. Pursuant to the screening

function of 28 U.S.C. § 1915A, the district court acted within

its authority when it dismissed Russell’s complaint without

conducting a hearing or ordering the completion of a

questionnaire.

Russell further asserts that the district court erred in

denying his motion to appoint counsel. Russell’s case does not

present the type of exceptional circumstances that warrant the

appointment of counsel; accordingly, the district court did not

abuse its discretion in denying Russell’s motion to appoint

counsel. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987);

Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). 

The judgment of the district court is affirmed.

The district court’s dismissal for failure to state a

claim counts as one strike under 28 U.S.C. § 1915(g). See
No. 05-40189

-3-

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

dismissed as frivolous a prior appeal filed by Russell from the

dismissal as frivolous of a complaint filed in the district

court. See Russell v. Hawks, No. 02-40172 (5th Cir. Aug. 21,

2002) (unpublished). At that time Russell was informed that he

had accumulated two strikes under § 1915(g) and was warned of the

sanction that would be imposed if he acquired a third strike. 

Russell has now accumulated at least three strikes. Therefore,

Russell may not proceed in forma pauperis 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 § 1915(g). 

AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED.