Burden v. Unidentified Party, et al

Filing 920060808

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 05-40781 Summary Calendar DOUGLAS ALAN BURDEN, Plaintiff-Appellant, versus UNIDENTIFIED PARTY, Head Supervisor/Director of ATAR Spindletop Life Resources; DENA JOHNSON, Johnston's Head Counselor; MIKE FAIRLEY, Head Coordinator of Substance Abuse; JAMES TABORWSKI, Probation Officer; ROSALYN COBBALD, Director, ATAR Spindletop Life Resources, Defendants-Appellees. -------------------Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:03-CV-582 -------------------Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Douglas Alan Burden, Texas prisoner # 1160823, appeals from the dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C. § 1915(e)(2)(b)(i), (ii) as frivolous and for failure to state a claim and moves for appointment of counsel. He argues that August 7, 2006 Charles R. Fulbruge III Clerk

the district court erred in holding that he failed to state a claim under the Equal Protection Clause. supplemental reply brief is granted. Affording the dismissal the requisite de novo review, Geiger 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Burden's motion to file a

v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005), we hold that Burden has failed to allege facts that would tend to show that he was intentionally treated differently from similarly situated clients of the treatment program without a rational basis for the

distinction. 564 (2000).

See Village of Willowbrook v. Olech, 528 U.S. 562, He has therefore indeed failed to state an equal

protection claim. Burden's appeal presents no "exceptional circumstances," and his motion for appointment of counsel is therefore denied. v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). appeal is without arguable merit, it is dismissed. Ulmer

Because his See 5TH CIR. R.

42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Burden is cautioned that the dismissal of this appeal as frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g), in addition to the strike for the district court's dismissal. Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). See

He is

further cautioned that if he accumulates three strikes under § 1915(g), he will not be able to proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).

APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; MOTION TO FILE SUPPLEMENTAL REPLY BRIEF GRANTED; SANCTION WARNING ISSUED.

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