United States Court of Appeals

for the Fifth Circuit

No. 20-20350

Antonio Q. McGee, 

Plaintiff—Appellant,

versus

Art Acevedo, Chief of Police, 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-2170

Before Higginbotham, Smith, and Oldham, Circuit Judges.

Per Curiam:*

Antonio Q. McGee, Texas prisoner # 02267742, moves for leave to 

proceed in forma pauperis (IFP) on appeal from the dismissal as malicious 

and, in the alternative, frivolous of his 42 U.S.C. § 1983 complaint. He also 

moves for appointment of appellate counsel. The district court dismissed 

McGee’s claims of unlawful arrest and confinement, which he previously 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 3, 2021

Lyle W. Cayce

Clerk

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2

attempted to litigate, as malicious. It also denied McGee’s request to 

proceed IFP on appeal on grounds that, with the instant dismissal, he had 

accumulated “three strikes” for purposes of 28 U.S.C. § 1915(g) and had not 

shown that he was under imminent danger of serious physical injury.

McGee fails to present a nonfrivolous issue for appeal, which is 

required to proceed IFP. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 

1983). A prisoner’s civil rights action is subject to dismissal as malicious if it 

repeats virtually identical claims based on a common series of occurrences. 

See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988); Wilson v. Lynaugh, 

878 F.2d 846, 850 (5th Cir. 1989). McGee’s action is essentially identical to 

an earlier action that was dismissed with prejudice. 

Regarding the strike that he received from a previously dismissed 

complaint, McGee v. Wallace, No. 4:18-CV-419, 2018 WL 1730313 (S.D. Tex. 

Apr. 10, 2018), McGee’s argument that a strike was improper because it was 

not dismissed in compliance with 42 U.S.C. § 1983 and 28 U.S.C. § 636(c) is 

unclear and lacks merit. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995)

(holding that while this court liberally construes pro se briefs, pro se litigants 

“must still brief the issues”). His argument that his other dismissed 

complaint, McGee v. Acevedo, No. 4:19-CV-934 (S.D. Tex. Apr. 16, 2019),

should not constitute a strike because it was dismissed without prejudice and 

was in connection with a habeas application similarly lacks merit. See Brown

v. Megg, 857 F.3d 287, 291 (5th Cir. 2017) (holding that a district court should

separate habeas claims from § 1983 claims where a complaint contains both 

and should impose a strike where all the § 1983 claims are dismissed as 

frivolous). 

Thus, McGee’s motion for leave to proceed IFP is DENIED. His

motion for appointment of counsel is also DENIED. The appeal is 

DISMISSED as frivolous. See 5th Cir. R. 42.2. 

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The district court’s dismissal of McGee’s complaint as malicious and 

the dismissal of this appeal as frivolous count as two strikes under 28 U.S.C. 

§ 1915(g). See Coleman v. Tollefson, 575 U.S. 532, 537 (2015). The dismissals

of Wallace and Acevedo also count as two strikes. See Hamilton v. Lyons, 74 

F.3d 99, 102 (5th Cir. 1996); Boyd v. Biggers, 31 F.3d 279, 281, 284-85 (5th 

Cir. 1994). As such, McGee has incurred at least three strikes and is thus 

BARRED from bringing any civil action or appeal while detained or 

incarcerated in any facility “unless [he] is under imminent danger of serious 

physical injury.” § 1915(g).

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