IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60243
Conference Calendar
VERONICA MCCALLUP,
Plaintiff-Appellant,
versus
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-80-WS
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August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Veronica McCallup, Mississippi prisoner # K1256, challenges
the district court’s 28 U.S.C. § 1915(e)(2)(b)(i) dismissal of
her 42 U.S.C. § 1983 complaint seeking injunctive relief and
compensatory and punitive damages. The complaint alleges that
McCallup is classified as “black” in prison documents and as an
“offender” in prison mail, and seeks injunctive relief to end
such designations. A complaint filed in forma pauperis may be
*
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that this opinion should not be published and is not precedent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. 02-60243
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dismissed as frivolous if it lacks an arguable basis in law or
fact. See Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
“A complaint lacks an arguable basis in law if it is based on an
indisputably meritless legal theory, such as if the complaint
alleges the violation of a legal interest which clearly does not
exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999)
(internal quotation and citation omitted). McCallup cites no
authority establishing that her allegations rise to the level of
a constitutional violation, and has failed to show that the
district court erred in dismissing her claim for injunctive
relief as frivolous.
The district court also determined that McCallup’s complaint
was malicious because it duplicated the allegations of other
pending federal lawsuits. A complaint filed in forma paueris is
malicious if it duplicates the allegations of another complaint
filed by the same plaintiff. See Pittman v. Moore, 980 F.2d 994,
994-95 (5th Cir. 1993); Wilson v. Lynaugh, 878 F.2d 846, 850 (5th
Cir. 1989). Because McCallup has failed to brief adequately any
argument that her complaint was not malicious under the standards
of Pittman and Wilson, the argument is deemed abandoned. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). McCallup
has failed to show that the district court’s dismissal was error.
We cannot agree with McCallup that the district court erred
in dismissing her complaint without providing an opportunity to
amend. A court does not err in dismissing a case without
No. 02-60243
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providing an opportunity to amend when no viable claim is
perceptible from the underlying facts asserted in the plaintiff’s
pleadings. See Jones v. Greninger, 188 F.3d 322, 326-27 (5th
Cir. 1999). Nor do we consider the claims newly-raised by
McCallup in her appellate brief. See Burch v. Coca-Cola, 119
F.3d 305, 319 (5th Cir. 1997)(“This Court will not consider on
appeal a claim not submitted to the district court.”).
McCallup’s appeal is without arguable merit, is frivolous,
and is therefore DISMISSED. See Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The district court’s
dismissal of McCallup’s complaint counts as a strike for purposes
of 28 U.S.C. § 1915(g), as does this court’s dismissal of the
instant appeal. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th
Cir. 1996). Considering the two strikes we assessed today in
McCallup v. Musgrove, No. 02-60233, McCallup has now accumulated
at least three strikes under the statute. Accordingly, 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).
APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.