McCallup v. Arender ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60224
Summary Calendar
VERONICA MCCALLUP,
Plaintiff-Appellant,
versus
MANTELL ARENDER; ORTHELL ARENDER;
ARENDER LOGGING CO.; GARY KING;
RAYMOND DELK; CARL BARRETT, III,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-145
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November 27, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Veronica McCallup, Mississippi state prisoner number K1256, has appealed the district
court’s judgment dismissing her civil rights complaint as frivolous and malicious pursuant to 28
U.S.C. § 1915(e)(2)(B)(i). To establish a claim under 42 U.S.C. § 1983, a plaintiff must allege a
violation by a state actor of a right secured by the Constitution or laws of the United States. Johnson
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). McCallup has not shown that the
district court abused its discretion in dismissing her claims against Mantell Arender, Orthell Arender,
Arender Logging Company, Gary King, and Carl Barrett, III, as frivolous because McCallup had not
shown that those parties were state actors. Nor has she shown that the district court abused its
discretion in dismissing her claims against defendants, Raymond Delk, Smith County, and Hinds
County, as malicious because they were duplicative of claims raised in two of the other actions then
pending in the district court.
Because McCallup’s appeal is without arguable merit, it is dismissed. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous
counts as a “strike” under 28 U.S.C. § 1915(g), as does the district court’s dismissal of McCallup’s
complaint as frivolous and malicious. See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.
1996). Because of McCallup’s many frivolous filings, the 28 U.S.C. § 1915(g) sanction has already
been imposed. We reiterate that McCallup may not while a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under 28 U.S.C. § 1915, unless she is under imminent danger
of serious physical injury.
APPEAL DISMISSED; SANCTION IMPOSED.
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