Case: 14-10149 Document: 00512866897 Page: 1 Date Filed: 12/11/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10149 FILED
December 11, 2014
RONNIE KENNETH ROSS, Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
TEXAS BOARD OF PARDON AND PAROLE; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-3649
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Ronnie Kenneth Ross, whose prisoner numbers in the Texas Department
of Criminal Justice have included # 1861575, # 711154, and # 955267, moves
for leave to proceed in forma pauperis (IFP) on appeal from the dismissal of his
42 U.S.C. § 1983 complaint as frivolous. The district court determined that the
defendants, the Texas Board of Pardons and Paroles (TBPP) and the Texas
Department of Criminal Justice (TDCJ), were immune under the Eleventh
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-10149
Amendment from Ross’s claims that he was entitled to monetary compensation
because he was unlawfully incarcerated before receiving a parole revocation
hearing and was required to work during that incarceration.
The district court denied him leave to proceed IFP on appeal and certified
that this appeal was not taken in good faith. By moving to proceed IFP here,
Ross is challenging the district court’s certification decision. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into Ross’s good faith
“is limited to whether the appeal involves legal points arguable on their merits
(and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983) (internal quotation marks and citation omitted).
Ross reiterates his claims that his constitutional rights were violated
based on his unlawful incarceration and the work he was required to perform
during that time. Pursuant to the Eleventh Amendment, federal courts are
without jurisdiction over suits against a state agency unless that state has
waived its sovereign immunity or Congress has clearly abrogated it. Moore v.
La. Bd. of Elementary and Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014).
The TBPP and TDCJ are immune under the Eleventh Amendment from Ross’s
suit. See Talib v. Gulley, 138 F.3d 211, 213 (5th Cir. 1998); Littles v. Bd. of
Pardons & Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995).
Ross has not demonstrated a nonfrivolous issue for appeal. See Howard,
707 F.2d at 219-20. The instant appeal is without arguable merit and is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. Ross
filed a prior civil suit that was dismissed as frivolous, a decision which he did
not appeal. Ross v. Dallas Cnty Sheriff, No. 3:99-CV-1860 (N.D. Tex. Sept. 27,
1999). That prior dismissal counts as one strike under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Based on the
district court’s dismissal of his instant complaint and our dismissal of this
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No. 14-10149
appeal as frivolous, Ross has accumulated two additional strikes, for a total of
at least three strikes under § 1915(g). See id. at 388. Thus, Ross may not
proceed IFP 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 § 1915(g).
Additionally, we warn Ross that frivolous, repetitive, or otherwise
abusive filings will invite the imposition of sanctions, which may include
dismissal, monetary sanctions, and restrictions on his ability to file pleadings
in this court and any court subject to this court’s jurisdiction. Ross is further
warned that he should review any pending appeals and actions and move to
dismiss any that are frivolous.
MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL
DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; SANCTION WARNING
ISSUED.
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