McCallup v. Singley

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60400
Conference Calendar
VERONICA MCCALLUP,
Plaintiff-Appellant,
versus
ROBERT SINGLEY, SR., ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-289-BN
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Veronica McCallup, Mississippi state prisoner # K1256,
appeals the district court’s dismissal of her civil rights action
as duplicative and therefore malicious. See 28 U.S.C. § 1915(e)
(2)(B)(i). She asserts conclusionally that her claims are not
duplicative. We DISMISS the appeal as frivolous.
The record in this case, as well as McCallup’s allegations
and arguments, indicate that she has raised the claims made in
her instant complaint in some of her prior lawsuits. McCallup
has failed to demonstrate that the district court abused its
*
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that this opinion should not be published and is not precedent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. 02-60400
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discretion in dismissing her complaint as malicious, based on its
being duplicative. See Bailey v. Johnson, 846 F.2d 1019, 1021
(5th Cir. 1988).
McCallup has asserted for the first time in her brief the
following claims: (1) wrongful placing of “drop meters” on her
Indian burial grounds and selling mineral rights thereof;
(2) defacing her tribal church with paint and placing a dog’s
body near the church; and (3) that she is still being held in
prison although her parole was scheduled for September 2001.
These claims will not be considered on this appeal because they
were not pleaded in McCallup’s complaint and they do not involve
purely legal questions. See Burch v. Coca-Cola Co., 119 F.3d
305, 319 (5th Cir. 1997); Kelly v. Foti, 77 F.3d 819, 822 (5th
Cir. 1996).
McCallup contends that the district court erred by counting
this case as a “strike” pursuant to 28 U.S.C. § 1915(g), because
it involves nonprison litigation. Section 1915(g) applies to all
of a prisoner’s frivolous or malicious litigation, however, not
just to prison-related claims. See Adepegba v. Hammons,
103 F.3d 383, 384-87 (5th Cir. 1996).
McCallup’s appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, McCallup’s appeal is DISMISSED. See 5TH CIR.
R. 42.2. The district court’s dismissal of McCallup’s complaint
as frivolous and the dismissal of this appeal as frivolous both
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count as “strikes” pursuant to 28 U.S.C. § 1915(g). See
Adepegba, 103 F.3d at 388. As McCallup has now accumulated at
least five strikes, she may not proceed in forma pauperis in any
civil action or appeal filed while she is incarcerated or
detained in any facility unless she is in imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g); McCallup v.
Musgrove, No. 02-60233 (5th Cir. Aug. 20, 2002) (unpublished).
McCallup is hereby cautioned that the prosecution of
additional frivolous appeals will invite the imposition of
additional sanctions. Therefore McCallup should review any
pending appeals to determine whether they raise frivolous issues.
APPEAL DISMISSED; THREE-STRIKES BAR NOTED; SANCTION WARNING
ISSUED.