Case: 13-20590 Document: 00512600243 Page: 1 Date Filed: 04/17/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-20590 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
April 17, 2014
MAURICE MITCHELL, Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
THOMAS O. REYNOLDS, Sergeant; AQUISHA GUIDRY, Grievance
Coordinator II; O’MYRA MONTEZ; ALETHEA NORTH-WILLIAMS,
Correctional Officer IV,
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-708
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Plaintiff-Appellant Maurice Mitchell, Texas prisoner # 648121, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint as
barred by the “three strikes” provision of 28 U.S.C. § 1915(g). As he did below,
Mitchell challenges the district court’s assignment of a strike for the dismissal
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-20590 Document: 00512600243 Page: 2 Date Filed: 04/17/2014
No. 13-20590
as frivolous of the complaint in Jackson v. Garner, No. 96-cv-130 (E.D. Tex.
Oct. 9, 1996). Mitchell asserts that he was not a plaintiff in that case.
The district court’s docket sheet in Jackson confirms that Mitchell was
in fact one of the prisoner-plaintiffs and, more specifically, that his complaint
was dismissed as frivolous. The district court thus properly concluded that the
dismissal counted as a strike for purposes of § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). The strikes assigned to Mitchell
based on the dismissal of a prior state-court civil lawsuit, however, should not
have counted. See 28 U.S.C. §§ 451, 1915(g). Accordingly, the district court’s
judgment is vacated, and the case is remanded for further proceedings
consistent with this opinion.
We note that, after filing the instant lawsuit, Mitchell accrued two
additional strikes for the district court’s dismissal of his § 1983 lawsuit and
our dismissal of his appeal as frivolous in Mitchell v. Henderson, No. 13-20262,
2013 WL 6659745 (5th Cir. Dec. 18, 2013) (unpublished). See Adepegba,
103 F.3d at 387. Although he had not accumulated three strikes at the time
that he filed the instant suit, Mitchell has now done so. Consequently, Mitchell
is warned that he will be barred from proceeding in forma pauperis in any
future civil actions filed while he is incarcerated, absent a showing that he is
in imminent danger of serious physical injury. § 1915(g). Mitchell is also
cautioned that any future frivolous or repetitive filings in this court or any
court subject to our jurisdiction will subject him to additional sanctions, as will
his failure to withdraw any pending matters that are frivolous, repetitive, or
otherwise abusive.
VACATED AND REMANDED; SANCTION WARNING ISSUED;
28 U.S.C. § 1915(g) BAR IMPOSED.
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