Butcher v. Craig

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-41447
Conference Calendar
ROBERT ROY BUTCHER,
Plaintiff-Appellant,
versus
LARRY CRAIG; KENNETH RAMEY; DANNY L. BUTCHER; EDWARD L. PARKER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:04-CV-281
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Robert Roy Butcher, Texas inmate # 719502, appeals the
dismissal, pursuant to 28 U.S.C. § 1915A(b)(1), of his pro se
action asserting civil rights violations arising from the sale of
property in a Texas probate proceeding.
Butcher may not seek a reversal of the Texas probate court’s
judgment simply by casting his complaint in the form of a civil
rights action. See Phinizy v. State of Ala., 847 F.2d 282, 283
(5th Cir. 1988); Hagerty v. Succession of Clement, 749 F.2d 217,
*
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this opinion should not be published and is not precedent except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. 04-41447
-2-
220 (5th Cir. 1984). Because Butcher’s claims are inextricably
intertwined with his probate action, the federal district court
had no jurisdiction to consider them. See Phinizy, 847 F.2d at
283; Hagerty, 749 F.2d at 220. Because the appeal lacks arguable
merit, it is frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983). Accordingly, the appeal is dismissed.
Butcher is warned that the district court’s dismissal of his
complaint as frivolous and this court’s dismissal of his appeal
each count as a strike under 28 U.S.C. § 1915(g) and that, if he
accumulates three strikes, he will not be able to 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 Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); 28 U.S.C.
§ 1915(g). He is also warned that any future filing or
prosecution of paid frivolous appeals will invite the imposition
of monetary sanctions.
APPEAL DISMISSED; SANCTION WARNING ISSUED.