Foster v. Unidentified Party

* 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not be published and is not precedent except under the limited circumstances set forth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.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40349
LUTHER OTIS FOSTER, III,
Plaintiff - Appellant,
versus
UNIDENTIFIED PARTY, John Doe #1, Warden;
UNIDENTIFIED PARTY, John Doe # 2,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Texas, Beaumont
USDC No. 1:01-CV-44
April 1, 2002
Before POLITZ, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
Luther Otis Foster, III, a federal prisoner who is a pro se litigant proceeding in
forma pauperis, brought an action under Bivens v. Six Unknown Named Agents

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1403 U.S. 388 (1971).
2
of Federal Bureau of Narcotics,1 alleging that defendants negligently subjected him to
second-hand smoke by failing to enforce a no-smoking policy. The district court
dismissed the complaint as barred under 28 U.S.C. § 1915(g). Three prior actions by
Foster had been dismissed as frivolous or for failing to state a claim. Therefore, under
§ 1915(g), proceeding in forma pauperis, Foster was required to show he was “under
imminent danger of serious physical injury.” The district court found that Foster did
not make such a showing and dismissed the complaint.
Whether Foster’s complaint states a claim that he is “under imminent danger of
serious physical injury,” is a conclusion of law which we review de novo.
We find neither error nor abuse of discretion in the district court’s determination
that Foster failed to demonstrate in his petition that he is in “imminent danger of serious
physical injury.” Therefore, dismissal under § 1915(g) was proper.
AFFIRMED.

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