IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20717 Conference Calendar

ESEQUIEL RODRIGUEZ,

Plaintiff-Appellant,

versus

BABBILI ANANDA; U.S. STAFF ATTORNEY’S OFFICE,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-246 --------------------

February 13, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Esequiel Rodriguez, Texas prisoner # 421876, appeals the

dismissal of his in forma pauperis (“IFP”)

lawsuit asserting that he has been denied medical treatment. The

district court determined that Rodriguez was barred from

proceeding IFP by the “three-strikes” provision of the Prison

Litigation Reform Act,

(g), because, on at least

four prior occasions, he has filed civil lawsuits which have been

dismissed as frivolous or for failure to state a claim.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-20717 -2-

Rodriguez does not challenge this determination, and any argument

that the district court’s finding was error is waived. See Yohey

v. Collins,

(5th Cir. 1995). Instead,

Rodriguez asserts that his lawsuit was not a

action but was a

habeas corpus petition. He is

incorrect. See Preiser v. Rodriguez,

(1973);

see also Carson v. Johnson,

(5th Cir. 1997).

Rodriguez has made no showing that he was in imminent danger

of serious physical injury at the time the instant suit was

filed, and he has therefore failed to demonstrate any error in

the district court’s dismissal. See

(g); Banos

v. O’Guin,

(5th Cir. 1998). Rodriguez is

thus BARRED from proceeding IFP under

(g), his

IFP status is REVOKED, and he may not bring a civil action or

appeal a judgment in a civil action or proceeding under § 1915

while incarcerated or detained in any facility, unless he is

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

The appeal is DISMISSED.

Rodriguez has 30 days from the date of this opinion to pay

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

district court, should he wish to reinstate his appeal.

Rodriguez’s motion for release pending appeal is DENIED.

IFP REVOKED; APPEAL DISMISSED; MOTION DENIED.