* 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that this opinion should not be published and is not precedent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. 99-40581

Conference Calendar

 

WILLIAM STEED KELLEY,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION,

Defendant-Appellee.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. C-97-CV-459

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

December 14, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges. 

PER CURIAM:*

William Steed Kelley, Texas prisoner # 457296, seeks

permission to proceed in forma pauperis (IFP) on appeal of the

district court’s dismissal of his 42 U.S.C. § 1983 civil rights

action. The district court denied Kelley’s motion for leave to

proceed in forma pauperis (IFP) on appeal because he is barred

from proceeding IFP on appeal by 28 U.S.C. § 1915(g).

Kelley argues that the district court erred in treating his

complaint as a § 1983 action and in applying the Prison 
No. 99-40581

-2-

Litigation Reform Act (PLRA) to his action. Because Kelley is

challenging the condition of his confinement in administrative

segregation, the district court did not err in treating his

complaint as a § 1983 action and in applying the PLRA to his

action. See Cook v. Texas Dep’t of Criminal Justice Planning

Dep’t, 37 F.3d 166, 168 (5th Cir. 1994)(“Section 1983 is an

appropriate legal vehicle to attack unconstitutional parole

procedures or conditions of confinement.”). 

 This court has previously determined that while

incarcerated Kelley has had at least three actions dismissed as

frivolous or for failure to state a claim upon which relief may

be granted. See Kelley v. Johnson, No. 99-40404 (5th Cir. July

20, 1999). Accordingly, Kelley may not proceed IFP in any civil

action or appeal filed while he is in prison unless he is under

imminent danger of serious physical injury. § 1915(g); Adepegba

v. Hammons, 103 F.3d 383, 388 (5th Cir. 1997). Kelley alleges

that he being tortured and is currently suffering serious

physical and emotional/psychological injuries due to his

placement in administrative segregation. However, Kelley has not

alleged facts which indicate that he is in imminent danger of

serious physical injury. See § 1915(g). Therefore, § 1915(g)

applies to bar his appeal IFP, and his motion to appeal IFP is

denied. See Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998). 

This court has previously rejected the argument now raised by

Kelley that the application of § 1915(g) has denied him access to

the courts. See Carson v. Johnson, 112 F.3d 818, 821-22 (5th

Cir. 1997).
No. 99-40581

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Kelley has 30 days from the date of this order to pay the

full appellate filing fee of $105 to the clerk of the district

court should be wish to reinstate his appeal.

Kelley’s motion for leave to file a motion for en banc

consideration in excess of the page limits and his motion for

en banc consideration are DENIED.

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

APPLIED; OTHER MOTIONS DENIED.