United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-20527
Conference Calendar
GUY L. ALLEN,
Plaintiff-Appellant,
versus
WAYNE SCOTT, Director; KYLE RACKLEY; BOARD OF DIRECTORS,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CV-1262
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Guy L. Allen, Texas prisoner #642038, appeals from the
district court’s dismissal with prejudice of his civil-rights
lawsuit, filed under 42 U.S.C. § 1983, as malicious pursuant to
28 U.S.C. § 1915A(b)(1). The claims in Allen’s instant lawsuit
are duplicative of his claims in an earlier lawsuit that was
dismissed in district court as frivolous. As his instant claims
were duplicative, the district court properly dismissed them as
malicious pursuant to 28 U.S.C. § 1915A(b)(1). See Pittman v.
*
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that this opinion should not be published and is not precedent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. 03-20527
-2-
Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Bailey v. Johnson,
846 F.2d 1019, 1021 (5th Cir. 1988).
As Allen’s appeal is without arguable merit, it is DISMISSED
AS FRIVOLOUS. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2. Allen’s motion for appointment of
counsel on appeal is DENIED.
The dismissal of the instant appeal as frivolous and the
district court’s dismissal of Allen’s instant lawsuit both count
as strikes under the Prison Litigation Reform Act. See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Allen
previously received two strikes when his civil-rights lawsuits
were dismissed as frivolous in Allen v. Bluebird Bus Co., No.
4:98-CV-3414 (S.D. Tex. July 29, 1999), and in Allen v. Weems,
No. 6:02-CV-56 (E.D. Tex. Apr. 8, 2002). Because Allen has
accumulated at least three strikes under 28 U.S.C. § 1915(g), he
is BARRED from proceeding in forma pauperis 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. 28 U.S.C. § 1915(g). As Allen is not proceeding in
forma pauperis in the instant appeal, Allen is also WARNED that
sanctions may be imposed in response to future frivolous filings.
APPEAL DISMISSED AS FRIVOLOUS; MOTION FOR APPOINTMENT OF
COUNSEL DENIED; 28 U.S.C. § 1915(g) BAR IMPOSED; SANCTIONS
WARNING ISSUED.