Branum v. Johnson , 265 F. App'x 349 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 14, 2008
No. 07-20312
Summary Calendar Charles R. Fulbruge III
Clerk
ALFRED LEE BRANUM
Plaintiff-Appellant
v.
GARY JOHNSON; MARK LAUGHLIN, Warden; CAREY STAPLES, Assistant
Warden; JANET CANTU; SHIRLEY CLAYBORN; DAVID RICE; SARAH
VACANTE; BOBBY GAFFARD; TEXAS DEPARTMENT OF CRIMINAL
JUSTICE; LINDA KIMICH; KIOLA NIAK
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-229
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Alfred Lee Branum, Texas prisoner # 286354, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 action as frivolous pursuant
to 28 U.S.C. § 1915A. Branum contends that the district court abused its
discretion by striking his original and first amended complaints for improper
joinder. He maintains that the district court erred by dismissing his claims
*
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should not be published and is not precedent except under the limited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. 07-20312
challenging a disciplinary proceeding against him, asserting that the district
court abused its discretion in dismissing his claims against Kiola Niak and
Linda Kimich for improper joinder of defendants under FED. R. CIV. P. 20.
Branum’s original and first amended complaints were long and rambling,
linking numerous claims and defendants that were, at best, tenuously related.
In total, the complaints, memoranda and attachments amounted to 411 pages.
The district court did not abuse its discretion in striking the original and first
amended complaints and ordering Branum to file a second amended complaint
that followed proper rules of joinder. See Arrington v. City of Fairfield, Ala., 414
F.2d 687, 693 (5th Cir. 1969).
Branum did not allege that the disciplinary-infraction conviction he
challenged had been overruled or reversed. He did allege that he lost previously
earned good-time credits as a result of the disciplinary infraction conviction.
Despite his protestation to the contrary, his second amended complaint clearly
sought monetary damages for the disciplinary-infraction conviction. The district
court did not err in dismissing the claims challenging the disciplinary
proceeding. See Clarke v. Stalder, 154 F.3d 186, 189-90 (5th Cir. 1998) (en banc).
Branum’s claims against Niak and Kimich involved an assault against
Branum by another inmate and various actions Kimich took towards Branum
after the assault. Although the disciplinary proceeding Branum challenged
stemmed from the fight in which Branum alleges that he was assaulted, his
claims regarding the disciplinary proceeding were not related to the same
incident and did not involve common questions of fact or law as in his claims
against Niak and Kimich. The district court did not abuse its discretion in
dismissing Branum’s claims against Niak and Kimich for improper joinder. See
FED. R. CIV. P. 20; Arrington, 414 F.2d at 693.
Branum’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). As such, his appeal is dismissed.
See 5TH CIR. R. 42.2.
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No. 07-20312
The dismissal of this appeal as frivolous counts as a strike under 28 U.S.C.
§ 1915(g), as does the district court’s dismissal of the complaint. See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); Patton v. Jefferson Corr. Ctr.,
136 F.3d 458, 464 (5th Cir. 1998) (holding prisoner cannot avoid strike by
improperly joining claims to complaint). Branum has previously accumulated
two strikes. See Branum v. Johnson, No. 07-20093, 2007 WL 4372074 at *1 (5th
Cir. Dec. 11, 2007) (unpublished). As Branum has now accumulated more than
three strikes, he is barred from proceeding in forma pauperis pursuant to § 1915
while he is incarcerated or detained in any facility unless he is in imminent
danger of serious physical injury. See § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.
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