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Barber v. Burke ( 2022 )


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  • Case: 21-60725     Document: 00516272742          Page: 1    Date Filed: 04/08/2022
United States Court of Appeals
for the Fifth Circuit                             United States Court of Appeals
Fifth Circuit
FILED
April 8, 2022
No. 21-60725
Lyle W. Cayce
Clerk
Demetrius Barber,
Plaintiff—Appellant,
versus
James Burke, Individual Capacity; P. Wiley, Individual Capacity; R.
Pennington, Individual Capacity,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:21-CV-4
Before Smith, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Demetrius Barber, Mississippi prisoner #K6330, seeks leave to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal
of his
    42 U.S.C. § 1983
     lawsuit as frivolous. By moving to proceed IFP, he is
challenging the district court’s certification pursuant to 28 U.S.C.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-60725       Document: 00516272742           Page: 2   Date Filed: 04/08/2022
No. 21-60725
§ 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3)(A) that any
appeal would not be taken in good faith because, for the reasons relied upon
in the order and judgment, Barber will not present a nonfrivolous appellate
issue. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
Barber argues that he is financially eligible to proceed IFP and that he
has meritorious Eighth Amendment claims that have never been considered
on the merits, subjected to discovery or an evidentiary hearing, or responded
to by the defendants. Barber has failed to brief, and thus abandoned, any
argument challenging the district court’s conclusion that his claims are
identical to those he raised against the same defendants in a previous lawsuit
and thus barred by res judicata. See Yohey v. Collins,
    985 F.2d 222
    , 224-25
(5th Cir. 1993); see also Brinkmann v. Dallas Cnty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987). Even had Barber briefed the argument, it
would be unavailing. See United States v. Shanbaum,
    10 F.3d 305
    , 310 (5th Cir.
1994).
The appeal is without arguable merit and is thus frivolous. See Howard
v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983). Consequently, the IFP motion is
denied, and the appeal is dismissed. See Baugh,
    117 F.3d at 
    202 & n.24; 5th
Cir. R. 42.2.
The district court’s dismissal of the complaint as frivolous and the
dismissal as frivolous of this appeal each count as a strike under
    28 U.S.C. § 1915
    (g).See Adepegba v. Hammons,
    103 F.3d 383
    , 388 (5th Cir. 1996),
abrogated in part on other grounds by Coleman v. Tollefson,
    575 U.S. 532
    , 537
(2015). Barber has one previous strike. See Barber v. Burke, No. 4:18-CV-149,
    2019 WL 165716
     (N.D. Miss. Jan. 10, 2019). He now has three strikes. See
Coleman, 575 U.S. at 537. Thus, he is now barred from proceeding IFP in any
civil action or appeal filed while he is incarcerated or detained unless he is
under imminent danger of serious physical injury. See § 1915(g); McGarrah
2
Case: 21-60725      Document: 00516272742          Page: 3   Date Filed: 04/08/2022
No. 21-60725
v. Alford,
    783 F.3d 584
    , 585 (5th Cir. 2015). He is WARNED that any
pending or future frivolous or repetitive filings in this court or any court
subject to this court’s jurisdiction may subject him to additional sanctions,
and he is directed to review all pending matters and move to dismiss any that
are frivolous, repetitive, or otherwise abusive.
MOTION          DENIED;             APPEAL     DISMISSED          AS
FRIVOLOUS; SANCTION IMPOSED; WARNING ISSUED.
3