* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50705

Conference Calendar

EDWIN BERNARD PERKINS

Plaintiff-Appellant

v.

GARY JOHNSON, Individually/Official Capacity as EXECUTIVE DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; DOUGLAS DRETKE,

Individually/Official Capacity as DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE; TEXAS ATTORNEY GENERAL GREG ABBOTT,

Individually/Official Capacity as Attorney General of State of Texas; TEXAS

TECHNICAL UNIVERSITY HEALTH SCIENCE CENTER; NANCY

MITCHELL; DANA BUTLER; UNIVERSITY OF TEXAS MEDICAL BRANCH

at GALVESTON; TEN UNKNOWN NAMED CORRECTIONAL OFFICIALS,

Individually/Official Capacity as Texas Department of Criminal Justice -

Institution Division Employees

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:05-CV-226

Before KING, WIENER, and ELROD, Circuit Judges. 

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

February 20, 2008

Charles R. Fulbruge III

Clerk
No. 07-50705

2

Edwin Bernard Perkins, Texas prisoner # 699746, moves for leave to

proceed in forma pauperis (IFP) on appeal following the dismissal of his civil

rights action as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and the

district court’s certification that his appeal was not taken in good faith. Perkins

contends that the district court erred by holding him to a heightened pleading

standard and dismissing his action without first allowing him to develop the

factual basis for his complaint. He contends that his action was not frivolous,

but he provides only conclusional allegations of constitutional violations.

Prisoners pursuing civil rights actions do not have a heightened pleading

standard as to their initial complaints beyond the notice pleading standards of

FED. R. CIV. P. 8. Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en

banc). However, a district court may conduct a hearing pursuant to Spears v.

McCotter, 766 F.2d 179 (5th Cir. 1985), or use some other procedural device

before any responsive pleadings are filed to determine whether a prisoner’s

complaint should be dismissed as frivolous. Schultea, 47 F.3d at 1434.

Conclusional allegations do not give rise to constitutional claims. Koch v.

Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Perkins has not indicated any factual

basis for his claims that could have been developed any further, and he has not

demonstrated that the district court abused its discretion by not holding a

Spears hearing or using a similar procedural device in his case. See Eason v.

Thaler, 14 F.3d 8, 9 (5th Cir. 1994).

Perkins’s appeal is without arguable merit and is frivolous. See Howard

v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). His IFP motion is denied and his

appeal is dismissed. See 5TH CIR. R. 42.2.

The district court’s dismissal of Perkins’s action and this court’s dismissal

of his appeal count as two strikes under § 1915(g). See Adepegba v. Hammons,

103 F.3d 383, 387-88 (5th Cir. 1996). Perkins accumulated one more strike in

another case resulting in an appeal that was dismissed as frivolous. See Perkins
No. 07-50705

3

v. Johnson, 118 F. App’x 824, 825 (5th Cir. 2004). As Perkins has now

accumulated three strikes, he is barred from proceeding IFP pursuant to § 1915

while he is incarcerated or detained in any facility unless he is under imminent

danger of serious physical injury. See § 1915(g).

IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.