Mendives v. Bexar County ( 2023 )


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  • Case: 21-51040        Document: 00516635070             Page: 1      Date Filed: 02/03/2023
    United States Court of Appeals
    for the Fifth Circuit
    ____________                                United States Court of Appeals
    Fifth Circuit
    FILED
    No. 21-51040
    February 3, 2023
    Summary Calendar
    ____________                                     Lyle W. Cayce
    Clerk
    Roberto Carlos Mendives, sui juris, and on behalf of his four
    minor children, R.C.M. II, M.A.M., G.L.M., E.F.M., (minor
    children),
    Plaintiff—Appellant,
    versus
    Bexar County, et al.; State of Texas, et al.; Angela Rose
    Wooten, (in err); Department of Health and Human
    Services, o/b/o; Department of Justice, o/b/o; Attorney
    Velia Judith Meza,
    Defendants—Appellees.
    ______________________________
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 5:21-CV-356
    ______________________________
    Before Clement, Southwick, and Higginson, Circuit Judges.
    Per Curiam:*
    _____________________
    *
    This opinion is not designated for publication. See 5th Cir. R. 47.5.
    Case: 21-51040      Document: 00516635070          Page: 2     Date Filed: 02/03/2023
    Roberto Carlos Mendives moves for leave to proceed in forma
    pauperis (IFP) in this appeal from a judgment dismissing his lawsuit as
    frivolous or malicious under 
    28 U.S.C. § 1915
    (e)(2)(B)(i). We review the
    district court’s dismissal under § 1915(e)(2)(B)(i) for an abuse of discretion.
    See Shakouri v. Davis, 
    923 F.3d 407
    , 410 (5th Cir. 2019); Geiger v. Jowers, 
    404 F.3d 371
    , 373 (5th Cir. 2005). By moving to proceed IFP on appeal, Mendives
    has challenged the district court’s certification that the appeal is not taken in
    good faith. See 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) (cleaned up).
    An action may be dismissed as frivolous or malicious if it duplicates
    claims raised by the same plaintiff in a previous or pending litigation. See
    Pittman v. Moore, 
    980 F.2d 994
    , 994-95 (5th Cir. 1993); Wilson v. Lynaugh,
    
    878 F.2d 846
    , 850 (5th Cir. 1989); Bailey v. Johnson, 
    846 F.2d 1019
    , 1021 (5th
    Cir. 1988). The district court noted that Mendives’s lawsuit was duplicative
    of five federal actions he had previously filed and found that the lawsuit was
    frivolous and malicious on this basis. Mendives has not shown that he will
    raise a nonfrivolous issue regarding the dismissal of his complaint for
    purposes of § 1915(e)(2)(B)(i). See Pittman, 
    980 F.2d at 994-95
    ; Wilson, 
    878 F.2d at 850
    ; Bailey, 
    846 F.2d at 1021
    .
    Because Mendives has not shown that he will raise a nonfrivolous
    issue on appeal, his motion for leave to proceed IFP is DENIED, and the
    appeal is DISMISSED as frivolous. See Baugh, 
    117 F.3d at
    202 n.24;
    Howard, 
    707 F.2d at 220
    ; 5th Cir. R. 42.2. Mendives’s motion to expedite
    his appeal is DENIED as moot. Finally, his motion for judicial notice and
    all other outstanding motions are DENIED.