Castillo v. Asparion

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-31203
Conference Calendar
VINCENT MARK CASTILLO,
Plaintiff-Appellant,
versus
STEVEN ASPARION; MICHAEL ARCULETA; IRENE WHARTON;
UNIDENTIFIED PARTIES; LOUIS STEWART, Police Officer;
PATRICK GALLAGHER, Police Officer; KEVIN TREIGLE,
Police Officer; LAWRENCE LACROUTS, Police Officer;
EDDIE ROSE, Police Officer,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 03-CV-29
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Vincent Mark Castillo, Louisiana prisoner # 428777, filed
this 42 U.S.C. § 1983 action on November 30, 2002, while he was
out on parole. During the pendency of the litigation, Castillo
was reincarcerated. The district court granted the defendants’
FED. R. CIV. P. 12(b)(6) motion to dismiss and dismissed this
action with prejudice, concluding that Castillo had failed 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this opinion should not be published and is not precedent except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.
No. 03-31203
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state a claim under either the First or Fourth Amendment against
any of the defendants.
Castillo appeals, listing five issues on appeal in which he
poses general questions not tied to the facts in his case or to
the reasons of the district court in dismissing his action. In
his statement of facts, Castillo repeats the allegations stated
in his complaint with no citations to the record. He makes
general statements of law, citing a few First and Fourth
Amendment cases, but he makes no attempt to integrate these cases
into an argument about why, based on the facts he alleged, the
district court erred in dismissing his complaint because he had
failed to state a claim.
Castillo’s appeal is subject to dismissal for failure to
comply with the rules requiring citations to the record and
relevant legal authority. See Moore v. FDIC, 993 F.2d 106, 107
(5th Cir. 1993); FED. R. APP. P. 28(a).
Further, Castillo does not state why the district court’s
reasons for dismissal are erroneous. He does not address the
merits of the district court's opinion. Failure to identify any
error in the district court's analysis or application to the
facts of the case is the same as if the appellant had not
appealed that judgment. Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Castillo’s appeal is without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
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1983). Because the appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2.
Castillo has been a frequent litigant in this court.
Castillo has one strike under 28 U.S.C. § 1915(g) for the
dismissal of his appeal as frivolous in Castillo v. State of
Louisiana, No. 03-30856 (5th Cir. Feb. 18, 2004). The district
court’s dismissal of his claims for failure to state a claim
under FED. R. CIV. P. 12(b)(6) in this case does not count as a
strike under 28 U.S.C. § 1915(g) because Castillo was not
incarcerated when he filed this complaint. See Gay v. Texas
Department of Corrections, 117 F.3d 240, 241-42 (5th Cir.
1997) (application of PLRA depends upon whether the litigant was
incarcerated at the time of filing). Castillo is hereby informed
that the dismissal of this appeal as frivolous counts as his
second strike for purposes of 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (“[D]ismissals as
frivolous in the district courts or the court of appeals count
[as strikes] for the purposes of [§ 1915(g)].”). Castillo is
cautioned that once he accumulates three strikes, he may not
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. 28 U.S.C. § 1915(g).
In Castillo v. Hebert, No. 02-31132 (5th Cir. Aug. 19,
2003), this court warned Castillo that future frivolous appeals
would invite sanctions. Castillo is ORDERED to pay sanctions in
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the amount of $255, payable to the Clerk of this Court. The
Clerk of this Court and the clerks of all federal district courts
within this Circuit are directed to refuse to file any pro se
civil complaint or appeal by Castillo unless Castillo submits
proof of satisfaction of this sanction. If Castillo attempts to
file any further notices of appeal or original proceedings in
this court without such proof, the clerk will docket them for
administrative purposes only. Any other submissions which do not
show proof that the sanction has been paid will be neither
addressed nor acknowledged.
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) WARNING
ISSUED; MONETARY SANCTION IMPOSED.