Kirk Bagby v. Jerry Karriker, III , 555 F. App'x 405 ( 2014 )

Case: 13-40657 Document: 00512534656 Page: 1 Date Filed: 02/17/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40657 FILED
February 17, 2014
Lyle W. Cayce
KIRK MARTIN BAGBY, Clerk
Plaintiff-Appellant
v.
JERRY R. KARRIKER, III, Ex Officer Stg; FRANCINE SOUKUP, Correctional
Officer 4; DELBERT PURVIS, Stg; GREAGORY BALL, Lieutenant;
REGENER OLIVER, Ex Sub Counsel; JODY HEFINER, Major; K. A.
JANUARY, Captain,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:13-CV-327
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Kirk Martin Bagby, Texas inmate # 1582340, filed a 42 U.S.C. § 1983
complaint against Sergeant Jerry R. Karriker, III, and other prison employees
alleging that on December 22, 2011, Karriker wrote a false disciplinary case
claiming that Bagby attempted to assault a prison officer. Bagby alleged that
the other prison employees and a counsel substitute conspired to have him
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-40657
found guilty of the false charge and disciplined. The district court dismissed
the complaint pursuant to 28 U.S.C. § 1915A as malicious and frivolous
because it duplicated the complaint in Bagby v. Karriker, No. 6:12-CV-266
(E.D. Tex. Apr. 16, 2013). Bagby thereafter filed this appeal and moved for
leave to proceed in forma pauperis (IFP). The district court denied Bagby’s IFP
motion, certifying than his appeal was not taken in good faith.
Now, Bagby moves this court for authorization to proceed IFP. Bagby’s
motion is construed as a challenge to the district court’s certification decision.
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether
the appeal is taken in good faith “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).” Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation
omitted). If we uphold the district court’s certification decision, Bagby must
pay the appellate filing fee or the appeal will be dismissed for want of
prosecution. See Baugh, 117 F.3d at 202. However, if the appeal is frivolous,
we may dismiss it sua sponte under Fifth Circuit Rule 42.2. Id. at 202 n.24.
Bagby argues that the district court erred in finding that the instant
complaint was duplicative of his complaint in No. 6:12-cv-266 given that the
complaint in No. 6:12-cv-266 concerned Karriker’s alleged excessive use of
force. The district court may sua sponte dismiss a prisoner’s complaint against
a governmental officer or employee if the action is frivolous or malicious.
§ 1915A(b)(1). An action may be dismissed as malicious or frivolous if it
duplicates claims raised by the same plaintiff in previous or pending litigation.
See Wilson v. Lynaugh, 878 F.2d 846, 849-50 (5th Cir. 1989); Pittman v. Moore,
980 F.2d 994, 994-95 (5th Cir. 1993).
Our review of the record supports the district court’s conclusion that the
instant complaint was duplicative of the complaint filed in No. 6:12-cv-266.
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No. 13-40657
The two suits raised similar claims that fairly may be viewed as arising “from
the same series of events,” to wit, the December 22, 2011, allegedly false
disciplinary case. See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988).
Bagby has not shown that the district court erred in certifying that his appeal
was not taken in good faith, and his IFP motion is denied. See Baugh, 117 F.3d
at 202. The instant appeal is without arguable merit and is dismissed as
frivolous. See id. at 202 n.24; Howard, 707 F.2d at 219-20; 5th Cir. R. 42.2.
The dismissal of this appeal as frivolous and the district court’s dismissal
of Bagby’s complaint as frivolous and malicious count as two strikes. See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We remind Bagby
that, because he had accumulated, prior to the conclusion of this case, at least
three strikes for purposes of 28 U.S.C. § 1915(g), see Bagby v. Karriker, No. 13-
40476 (5th Cir. Aug. 29, 2013), he may no longer 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. §1915(g). Additionally, we
warn Bagby that frivolous, repetitive, or otherwise abusive filings will invite
the imposition of sanctions, including dismissal, monetary sanctions, and/or
restrictions on his ability to file pleadings in this court and any court subject
to this court’s jurisdiction. Bagby is further warned that, in order to avoid the
imposition of sanctions, he should review any pending appeals and actions and
move to dismiss any that are frivolous. Bagby’s motion for appointment of
counsel is denied.
APPEAL DISMISSED; MOTION FOR LEAVE TO PROCEED IFP
DENIED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; 28 U.S.C.
§ 1915(g) BAR RE-IMPOSED; SANCTION WARNING ISSUED.
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