### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50008 Summary Calendar

ERIC FLORES, Plaintiff-Appellant

v. UNITED STATES ATTORNEY GENERAL; NORTHERN ATLANTIC EXTRADITION SERVICES, Defendants-Appellees

Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CV-256

Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges. PER CURIAM: * E r i c Flores, formerly detained in the El Paso County Jail Annex , challenges the district court’s dismissal of his pro se, in forma pauperis (IFP), civil rights compla i n t as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). Section 1915(e)(2)(B) provides that a district cour t s h a ll dismiss an IFP complaint, at any time, if the district court determines that the action is frivolo u s . Se e § 1915(e)(2)(B)(i). A complaint lacks an arguable basis in fact and is factually U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 27, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50008 Document: 00511552702 Page: 1 Date Filed: 07/27/2011No. 11-50008

frivolous when the allegations are fanciful, fantastic, and delusiona l o r when they “rise t o t h e l e v el of the irrational or the wholly incredible.” Denton v. Hernandez , 504 U.S. 25, 32-33 (1992). In the district court, Flores alleged that: [C]ertain executive employees of the federal governme n t

. . . are using advanced technology with a direct signal to the sat e l l ite in outer space that has the capability of calculating a genetic code to inflict upon the petition e r and his immediate relatives different types of genetic virus[es] that cause se v e r e pain which was equivalent in intensity to organ failure, brain damage, impairment of body function, and death.
We observe that Flores’s claims are similar to those raised in a prior action, also dis m i s s e d a s frivolous, and that we affirmed that prior dismissal as frivolous. See Flores v. U.S. Attorney Gen., 378 F. App’x 473 (5th Cir. 2010). The distric t c o urt d e t e r m i n e d th at Flores’s claims were “fanciful, fantastic, d e l u s i onal, and, therefore, baseless” or “irrational and ‘wholly incredible.’” Flores repeats his wholly incredible allegations in his brief to this court. Flores’s allegations lack an arguable basis in fact. See Denton , 504 U.S. at 32-33. The district court therefore did not abuse its discretion in dismissing Flores’s complaint as frivolous. See id. Flores’s appeal has no arguable merit, is frivolous, and is dismissed. See 5 T H C I R
. R. 42.2. Because Flores was incarcerated at the time that he filed the instant complaint, the district court’s dismissal of Flores’s action as frivolous counts as a strike for purposes of § 1915(g). See Adepegba v. Hammons , 103 F.3d 383, 387-88 (5th Cir. 1996). Should Flores accumulate three strikes, he will not be permitted to proceed IFP in any civil action or appeal filed while incarcerated

or detained in any facility unless he is u n d e r imminent danger of serious physical injury. See § 1915(g). Flores is further cautioned that the filing of further frivolous appeals will result in sanctions. These sanctions may include dismissal, monetary sanctions,

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and restrictions on his ability to file pleadings in this court and any court subject to this court’s jurisdiction. Flores is d i r e c t e d t o review any other appeals that may be pending in this court and to withdraw any appeal that is frivolous. All pending motions are denied. AP P EAL D I S M I S S E D AS FRIVO L O U S ; M O TI O N S D E N I E D ; SAN C T I O N WARNINGS ISSUED.

3 Case: 11-50008 Document: 00511552702 Page: 3 Date Filed: 07/27/2011