# United States Court **of Appeals**  **f or 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 o f 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* Pursuant to **5 th Cir**  **cuit R**  **ule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 3, 2021 Lyle W. Cayce Clerk Case: 20-20350 Document: 00515886709 Page: 1 Date Filed: 06/03/2021No. 20

- 20350

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 c laims 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 argu ment 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 w as dismissed without prejudice and was in connection with a habeas application similarly lack s merit. See Brown v. Megg , 857 F.3d 287, 2 91 (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.** Case: 20-20350 Document: 00515886709 Page: 2 Date Filed: 06/03/2021No. 20

- 20350

3 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 dismissal s 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). Case: 20-20350 Document: 00515886709 Page: 3 Date Filed: 06/03/2021