IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60279
Conference Calendar
ERIC FORD WASH,
Plaintiff-Appellant,
versus
ROBERT L. JOHNSON, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS;
WALTER BOOKER, Superintendent;
JOHN H. BEARRY, Doctor, Doctor at Unit 42,
Parchman,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:00-CV-226-P-D
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October 25, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Eric Ford Wash, Mississippi prisoner # 76258, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous. Wash argues that prison officials unconstitutionally
denied medical treatment for problems with his tonsils, kidneys,
and left leg. He further argues that the district court did not
permit him to conduct adequate discovery. Wash also has filed
*
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that this opinion should not be published and is not precedent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. 01-60279
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motions for appointment of counsel and for a temporary
restraining order. These motions are DENIED.
Wash fails to demonstrate that the district court’s
dismissal as frivolous was an abuse of discretion. See 28 U.S.C.
§ 1915(e)(2)(B)(i); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir.
1998). He filed an identical claim in state court that was
denied on the merits. Wash argues that his 42 U.S.C. § 1983
complaint should not be dismissed as res judicata because his
state court filing was not a federal civil rights action, but
merely a motion for a court order for surgery or additional
tests. Under the Mississippi law of res judicata, the state
court judgment had a preclusive effect on Wash’s filing a 42
U.S.C. § 1983 complaint in federal court. See Migra v. Warren
City School Dist. Bd. of Educ., 465 U.S. 75, 84-85 (1984); Riley
v. Moreland, 537 So. 2d 1348, 1354 (Miss. 1989). The fact that
Wash sought monetary relief in the instant civil rights action
but did not seek monetary relief in the prior state action does
not bar the application of the doctrine of res judicata. See
Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 559 (5th Cir.
1983).
Wash’s appeal has no arguable basis in law or fact;
therefore, it is DISMISSED as frivolous. See King v. Howard, 707
F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The district
court’s dismissal under 28 U.S.C. § 1915 counts as a strike
against Wash. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th
Cir. 1996). This court’s dismissal counts as another strike. If
Wash accumulates three strikes, he may not proceed in forma
No. 01-60279
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pauperis in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is in imminent
danger of serious physical injury. See 28 U.S.C. § 1915(g).
DISMISSED; SANCTIONS WARNING ISSUED; MOTIONS DENIED.