Spurlock v. Cockrell , 186 F. App'x 472 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 04-41140
Conference Calendar
JOHN C. SPURLOCK,
Plaintiff-Appellant,
versus
JANIE COCKRELL; AMADO IGLESIAS; BRENDA CHANEY;
CRYSTAL IRVIN; UNKNOWN PICKET OFFICER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:02-CV-61
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
John C. Spurlock, Texas prisoner # 741571, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint and
moves this court for appointment of counsel. The district court
determined that Spurlock’s claims against several of the
defendants were duplicative of claims that had been raised in a
prior § 1983 complaint that was dismissed as frivolous. Spurlock
v. Scott, No. V-00-0067 (S.D. Tex. Sept. 27, 2002). The district
*
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this opinion should not be published and is not precedent except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. 04-41140
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court granted the remaining defendants’ motion for summary judgment.
We conclude that Spurlock’s claims against all of the
defendants are duplicative of his claims in the earlier lawsuit
that was dismissed by the district court as frivolous. As his
instant claims are duplicative, the district court properly
dismissed them as malicious pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). See Pittman v. Moore, 980 F.2d 994, 994-95
(5th Cir. 1993); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.
1988); see also Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir.
1992) (court may affirm on any grounds supported by the record).
As Spurlock’s appeal is without arguable merit, it is
dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2. His motion for appointment of
counsel on appeal is denied.
The dismissal of the instant appeal as frivolous counts as a
strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Spurlock previously received
two strikes when his prior § 1983 complaint was dismissed as
frivolous in Spurlock v. Scott, No. V-00-0067 (S.D. Tex. Sept.
27, 2002), and this court dismissed his appeal as frivolous in
Spurlock v. Scott, 90 F. App’x 743, 744 (5th Cir. 2004). Because
Spurlock now has accumulated at least three strikes under
§ 1915(g), he is barred from proceeding in forma pauperis in any
civil action or appeal filed while he is incarcerated or detained
No. 04-41140
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in any facility unless he is under imminent danger of serious
physical injury. 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; MOTION FOR APPOINTMENT OF
COUNSEL DENIED; 28 U.S.C. § 1915(g) BAR IMPOSED.