Comeaux v. Cockrell ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 15, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-20444
Summary Calendar
ARCADE JOSEPH COMEAUX, JR.,
Plaintiff-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; RANDALL HEALY; RICK THALER,
Defendants-Appellees.
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Appeals from the United States District Court
for the Southern District of Texas
(H-01-CV-4264)
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Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Arcade Comeaux, Jr., Texas prisoner #
841331, appeals the district court’s partial dismissal order and
its memorandum of dismissal and final judgment. In its partial
dismissal order, the district court determined that several of
Comeaux’s claims duplicated those pending in another 42 U.S.C. §
1983 suit, dismissed those claims as malicious, instructed Comeaux
to file a shortened amended complaint and a signed motion to
*
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this opinion should not be published and is not precedent except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.
proceed in forma pauperis, and also instructed him not to file any
additional pleadings. The district court dismissed Comeaux’s suit
for failure to comply with the court’s orders under FED. R. CIV. P.
41(b), after he filed an amended complaint, a signed IFP motion,
and a number of other pleadings, including a motion for injunctive
relief and challenges to and an attempt to appeal the partial
dismissal order.
Comeaux’s filings in addition to his amended complaint
following the district court’s explicit and clear instructions not
to file any additional pleadings exhibited contumacious conduct.
The district court did not abuse its discretion when it dismissed
Comeaux’s suit for failure to comply with the court’s orders under
FED. R. CIV. P. 41(b). See Long v. Simmons, 77 F.3d 878, 880 (5th
Cir.1996); McNeal v. Papasan, 842 F.2d 787, 790, 792 (5th Cir.
1988).
Also without merit are his arguments that (1) he should have
been allowed to file an amended notice of appeal, (2) the district
court lacked jurisdiction over the case once Comeaux filed a notice
of appeal from the partial dismissal order, (3) the district court
should have considered Comeaux’s affidavits and granted his
requests for injunctive relief and for the appointment of counsel,
and (4) he was assessed too many filing fees for his district court
action and appeals.
With respect to the partial dismissal order, Comeaux was not
entitled to notice before the dismissal of some of his claims as
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malicious: The district court could dismiss part of Comeaux’s
complaint as malicious, which counted as a strike under 28 U.S.C.
§ 1915(g), even though the case was ultimately dismissed for
failure to comply with court orders. In addition, Comeaux has not
shown that the claims dismissed as malicious did not duplicate
previously filed claims. See 28 U.S.C. § 1915A(a) & (b); Carr v.
Dorvin, 171 F.3d 115, 116 (2d Cir. 1999); Patton v. Jefferson
Correctional Ctr., 136 F.3d 458, 463 (5th Cir. 1998); FED. R. APP.
P. 10(b); United States v. Hinojosa, 958 F.2d 624, 632-33 (5th Cir.
1992).
The district court did not abuse its discretion in dismissing
some of Comeaux’s claims as malicious or in dismissing his case for
failure to comply with the court’s orders. Comeaux’s appeal lacks
arguable merit and is thus dismissed as frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
The dismissal of Comeaux’s claims as malicious counts as a
strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996). The dismissal of Comeaux’s appeal
counts as an additional strike, id., and his appeal in case number
01-20584 was dismissed as frivolous, which counts as yet another
strike. Comeaux has now accumulated 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).
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APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.
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