Harris v. Truitt ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10107
Conference Calendar
CARL BERNARD HARRIS,
Plaintiff-Appellant,
versus
BARON TRUITT,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:00-CV-347
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June 14, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Carl Bernard Harris, Texas prisoner No. 806634, appeals the
district court’s dismissal of his civil rights complaint as
malicious. Harris acknowledges that this complaint raises the
identical claims that he raised in another district court suit,
and he concedes that he did not adequately investigate the status
of that lawsuit prior to filing the instant complaint. See
Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993). Thus, the
district court did not abuse its discretion by dismissing the
complaint. Denton v. Hernandez, 504 U.S. 25, 33 (1992).
*
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that this opinion should not be published and is not precedent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. 01-10107
-2-
Harris’s appeal is without arguable merit and is therefore
frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is dismissed. 5th Cir. R.
42.2.
The district court’s dismissal of the complaint as malicious
and this court’s dismissal of this appeal as frivolous count as
two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). We caution Harris
that once he accumulates three strikes, he may not proceed 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 AS FRIVOLOUS; SANCTIONS WARNING ISSUED.