Cabello v. Lowe , 83 F. App'x 624 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-40723
Conference Calendar
EDDIE CABELLO,
Plaintiff-Appellant,
versus
DOUGLAS LOWE, Criminal District Attorney; JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; HEATHER SCHITOSKEY, Correctional Officer, Coffield
Unit; UNIDENTIFIED PETERSON, Warden, Sergeant, Coffield Unit,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-CV-89
--------------------
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Eddie Cabello, Texas prisoner # 441345, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 suit under 28 U.S.C.
§ 1915A(b)(1). He argues that the district court should have
enjoined a pending state criminal prosecution of assault against
him because the assault charge was brought in bad faith.
*
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that this opinion should not be published and is not precedent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. 03-40723
-2-
A federal court may not interfere with a pending state
criminal proceeding absent extraordinary circumstances. Younger
v. Harris, 401 U.S. 37, 43, 53-54 (1971). Cabello has not shown
such circumstances. See id.; Perez v. Ledesma, 401 U.S. 82, 85
(1971); Ballard v. Wilson, 856 F.2d 1568, 1570-71 (5th Cir.
1988).
Cabello’s appeal lacks arguable merit and is DISMISSED AS
FRIVOLOUS. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5TH CIR. R. 42.2. The dismissal of his district court
complaint and of this appeal as frivolous each count as a
“strike” for purposes of the three-strikes bar under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996). Cabello is warned that, should he accumulate three
strikes, he will be barred from proceeding 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; THREE-STRIKES WARNING ISSUED.