Willis v. Stamps ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 23, 2008
No. 08-10030
Summary Calendar Charles R. Fulbruge III
Clerk
KELVIN LEE WILLIS,
Plaintiff-Appellant,
v.
INGRID K. STAMPS; EDITH P. STAMPS; SHELIA WHITE,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:07-CV-1741
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Kelvin Willis, Texas prisoner # 498831, moves to proceed in forma pauper-
is (“IFP”) to appeal the dismissal of his claims alleging RICO1 violations as frivo-
*
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should not be published and is not precedent except under the limited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.
1
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961.
Willis alleges claims under 18 U.S.C. §§ 1962 and 1964(c).
No. 08-10030
lous and for failure to state a claim under 28 U.S.C. § 1915(e) on the ground that
the claims are barred by res judicata. The district court denied Willis leave to
proceed IFP on appeal, certifying that the appeal was not taken in good faith.
By moving for leave to proceed IFP, Willis is challenging that certification. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Our inquiry into Willis’s good faith “is limited to whether the appeal in-
volves ‘legal points arguable on their merits (and therefore not frivolous).’” How-
ard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted). We review a
§ 1915 dismissal as frivolous for an abuse of discretion. See Norton v. Dimazana,
122 F.3d 286, 291 (5th Cir. 1997). A dismissal under § 1915(e)(2)(B)(ii) for fail-
ure to state a claim upon which relief can be granted is reviewed under the same
de novo standard as is a dismissal under FED. R. CIV. P. 12(b)(6). Black v. War-
ren, 134 F.3d 732, 733-34 (5th Cir. 1998). “The res judicata effect of a prior judg-
ment is a question of law that this court reviews de novo.” Test Master Educ.
Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005).
RICO claims can be barred by res judicata if they are “inconsistent with
the crux” of a bankruptcy court decision. See Hendrick v. Avent, 891 F.2d 583,
586-87 (5th Cir. 1990). The district court raised the issue of res judicata sua
sponte and before service on the defendants. “Generally, res judicata is an af-
firmative defense that must be pleaded, not raised sua sponte.” Mowbray v.
Cameron County, Tex., 274 F.3d 269, 281 (5th Cir. 2001). Although there are ex-
ceptions to that rule, see id., we need not decide whether the district court prop-
erly applied res judicata, because Willis’s RICO claims otherwise are subject to
dismissal as frivolous and for failure to state a claim.2
RICO prohibits specified conduct that involves “‘a pattern of racketeering
activity.’” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 453 (2006) (quoting
2
See Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (observing
that we may affirm on alternative grounds that are apparent from the record).
2
No. 08-10030
§ 1962). “All RICO violations under . . . § 1962 entail ‘(1) a person who engages
in (2) a pattern of racketeering activity, (3) connected to the acquisition, estab-
lishment, conduct, or control of an enterprise.’” In re MasterCard Int’l Inc., 313
F.3d 257, 261 (5th Cir. 2002) (emphasis omitted) (quoting Crowe v. Henry, 43
F.3d 198, 204 (5th Cir. 1995)). Even if we assume, as did the district court, that
the facts Willis alleged satisfied those requirements, Willis must fulfill RICO’s
standing requirement. See Price v. Pinnacle Brands, Inc., 138 F.3d 602, 606 (5th
Cir. 1998). Willis’s allegations, if true, do not reflect that he was a “‘person in-
jured in his business or property by reason of a violation’ of [RICO].” Anza, 547
U.S. at 453 (quoting § 1964(c)).
Willis has not shown that the district court’s determination that his appeal
would be frivolous is incorrect. Accordingly, his request for IFP is DENIED. See
Baugh, 117 F.3d at 202 n.24. Because the appeal is frivolous, it is dismissed.
5TH CIR. R. 42.2.
The district court’s dismissal of the complaint and this court’s dismissal
of the appeal count as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Willis has one previous
strike. See Willis v. Collins, No. 93-7247 (5th Cir. Nov. 1, 1993). Because he has
accumulated three strikes, he is barred from proceeding 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).
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.
3