Forkner v. Wilkinson County , 112 F. App'x 336 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 04-60461
Summary Calendar
WINFRED FORKNER,
Plaintiff-Appellant,
versus
WILKINSON COUNTY,
Defendant-Appellee.
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WINFRED FORKNER,
Plaintiff-Appellant,
versus
WILKINSON COUNTY; REGINALD JACKSON,
Individually and in his official capacity as
Sheriff of Wilkinson County, Mississippi;
PATNICH PATTERSON, Chief Deputy, individually
and in his official capacity; ANGELIA PACKNETT, Deputy,
individually and in her official capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:01-CV-203-BrSu
USDC No. 5:02-CV-494
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
*
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this opinion should not be published and is not precedent except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. 04-60461
-2-
Winfred Forkner, Mississippi prisoner # K5766, seeks leave
to proceed in forma pauperis (“IFP”) to appeal the district
court’s dismissal of his 42 U.S.C. § 1983 lawsuit asserting
claims of false arrest, false imprisonment, fraudulent
prosecution, and unconstitutional conditions of confinement.
By moving for leave to proceed IFP, Forkner is challenging the
district court’s certification that his appeal was not taken in
good faith because it is frivolous. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);
FED. R. APP. P. 24(a)(5). However, Forkner has not demonstrated
any nonfrivolous ground for appeal.
Forkner’s claims of false arrest and imprisonment rest on
his allegation that he was acquitted of the burglary charges
against him. He ignores the fact, as demonstrated by the
undisputed summary-judgment evidence, that although he was
acquitted on one count of the two-count burglary indictment at
issue, he was convicted on the other count. Because his
conviction on the burglary charge necessarily implies that
probable cause existed for his arrest, he cannot prevail on his
false-arrest and false-imprisonment claims. See Sappington v.
Bartee, 195 F.3d 234, 237 (5th Cir. 1999); Wells v. Bonner,
45 F.3d 90, 95 (5th Cir. 1995). Forkner’s conviction similarly
defeats his malicious-prosecution claim. See Kerr v. Lyford,
171 F.3d 330, 340 (5th Cir. 1999).
No. 04-60461
-3-
The summary-judgment dismissal of the conditions-of-
confinement claims also provides no basis for appeal. The
defendants’ summary-judgment evidence shows no constitutional
violation, and, even if Forkner’s self-serving, conclusional
allegations were sufficient to raise a material factual dispute
regarding the conditions of his confinement at Wilkinson County
Jail, he has never alleged or demonstrated any resulting injury,
which defeats the claims. See Memphis Community School Dist. v.
Stachura, 477 U.S. 299, 308-09 (1986).
The IFP motion is DENIED, and the appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2. Both
the district court’s dismissal and this court’s dismissal of the
instant appeal count as strikes for purposes of 28 U.S.C.
§ 1915(g). See 28 U.S.C. § 1915(e)(2); Adepegba v. Hammons, 103
F.3d 383, 387 (5th Cir. 1996). Forkner is CAUTIONED that if he
accumulates three strikes under § 1915(g), he will not be able to
proceed IFP 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).
IFP DENIED; APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.