IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50364
Conference Calendar
FREDDIE LOUIS BREWER,
Plaintiff-Appellant,
versus
FAWN D. CARL; RAUL MATA, Captain,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-96-CV-11
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June 17, 1997
Before SMITH, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Freddie Louis Brewer, # 293568, appeals the dismissal of his
42 U.S.C. § 1983 civil rights complaint. He has filed a motion
for leave to proceed in forma pauperis (IFP) on appeal. The
motion for leave to appeal IFP is GRANTED. The PLRA requires a
prisoner appealing IFP in a civil action to pay the full amount
of the filing fee, $105. As Brewer does not have funds for
immediate payment of this fee, he is assessed an initial partial
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-50364
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filing fee of $2.10 in accordance with 28 U.S.C. § 1915(b)(1).
Following the payment of the partial filing fee, funds shall be
deducted from Brewer’s prisoner account until the full filing fee
is paid. Id.
IT IS ORDERED that Brewer authorize the appropriate prison
authorities to withdraw the initial partial filing fee from his
prison trust fund account in accordance with the procedures
required by the prison and to forward payment of the initial
partial filing fee to the Clerk of the District Court for the
Western District of Texas. The initial partial filing fee must
be received by the Clerk of the District Court within 30 days
from the date of this opinion.
IT IS FURTHER ORDERED that the agency having custody of
Brewer’s inmate account shall, in accordance with 28 U.S.C.
§ 1915(b)(2), collect the remainder of the $105 filing fee and
forward to the Clerk of the District Court for the Western
District of Texas monthly payments of 20 percent of the
proceeding month's income each time the amount in Brewer’s
account exceeds $10.
Brewer argues that the district court abused its discretion
in relying upon his state court proceeding to dismiss his case;
that his claim of lack of notice states a cause of action; that
the district court abused its discretion by laying the blame on
him for the lack of notice; and that the district court erred by
not considering the merits of his cause of action. Brewer’s
No. 96-50364
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good-time credits were restored on appeal from his disciplinary
proceeding, and he has previously filed a § 1983 claim arising
out of this set of facts in state court. We consider this
lawsuit to be malicious due to repetitiveness. See Bailey v.
Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988).
Brewer’s appeal is without arguable merit and, thus,
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5th Cir. R. 42.2. Brewer is cautioned that any future frivolous
appeals filed by him or on his behalf will invite the imposition
of sanctions. Brewer is cautioned further to review any pending
appeals to ensure that they do not raise arguments that are
frivolous.
IFP GRANTED; APPEAL DISMISSED; SANCTION WARNING ISSUED.