Micheal Phillips v. A. Castillo , 354 F. App'x 948 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2009
No. 08-20784
Summary Calendar Charles R. Fulbruge III
Clerk
MICHAEL PHILLIPS,
Plaintiff-Appellant
v.
A. CASTILLO, Senior Warden of Estelle Unit; GUNNELL, Assistant Warden,
Estelle Unit; K. MAYFIELD, Assistant Regional Director of TDCJ-TID; TRACY
PUCKETT, Sergeant, Estelle Unit; Sharon L. Walker, Counsel Substitute
Estelle Unit; MILLER, Sergeant, Estelle Unit,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-2511
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The district court dismissed the 42 U.S.C. § 1983 suit filed by Michael
Phillips, Texas prisoner # 609548, to challenge his prison disciplinary
proceedings after determining that the claims raised therein were frivolous,
duplicative, and failed to state a claim upon which relief could be granted. The
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-20784
district court denied Phillips’s motion for leave to proceed in forma pauperis
(IFP) on appeal based on its determination that Phillips’s appeal was not taken
in good faith. We are now presented with Phillips’s request to proceed IFP on
appeal, which is a challenge to the district court’s good-faith determination. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1992).
Phillips argues that his § 1983 suit raised claims that implicated his
constitutional rights and that the district court erred by determining that these
claims were barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), and
Edwards v. Balisok, 520 U.S. 641, 648 (1997). According to Phillips, the district
court should have held a Spears 1 hearing before dismissing his suit. He does not
brief, and has thus waived, the issue whether the district court erred by
certifying that his appeal would raise no nonfrivolous claims challenging its
holding that his suit was duplicative. See Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993); see also F ED. R. A PP. P. 28(a)(9).
Because Phillips’s disciplinary conviction is still extant, and because
success on the instant suit would imply that this conviction was invalid, the
district court did not err in determining that Phillips’s suit is barred by Edwards
and Heck. See Edwards, 520 U.S. at 646-48; Heck, 512 U.S. at 486-87. There is
no indication that the deficiencies in Phillips’s complaint could have been
remedied with a Spears hearing; Phillips thus has not shown that the district
court erred by dismissing his complaint without first holding such a hearing.
See Taylor v. Johnson, 257 F.3d 470, 474 (5th Cir. 2001).
Phillips has not shown that he will present any nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His motion for
leave to proceed IFP is denied, and this appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2. Our dismissal of Phillips’s appeal
as frivolous and the district court’s dismissal of his civil rights suit count as two
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
No. 08-20784
strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996). We warn Phillips that if he accumulates a third strike
pursuant to § 1915(g) he shall be barred from proceeding IFP while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
3