Forkner v. Wilkinson County

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004

Charles R. Fulbruge III
Clerk
No. 04-60461
Summary Calendar

WINFRED FORKNER,

Plaintiff-Appellant,

versus

WILKINSON COUNTY,

Defendant-Appellee.
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WINFRED FORKNER,

Plaintiff-Appellant,

versus

WILKINSON COUNTY; REGINALD JACKSON,
Individually and in his official capacity as
Sheriff of Wilkinson County, Mississippi;
PATNICH PATTERSON, Chief Deputy, individually
and in his official capacity; ANGELIA PACKNETT, Deputy,
individually and in her official capacity,

Defendants-Appellees.

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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:01-CV-203-BrSu
USDC No. 5:02-CV-494
--------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

*
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this opinion should not be published and is not precedent except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. 04-60461
-2-

Winfred Forkner, Mississippi prisoner # K5766, seeks leave

to proceed in forma pauperis (“IFP”) to appeal the district

court’s dismissal of his 42 U.S.C. § 1983 lawsuit asserting

claims of false arrest, false imprisonment, fraudulent

prosecution, and unconstitutional conditions of confinement.

By moving for leave to proceed IFP, Forkner is challenging the

district court’s certification that his appeal was not taken in

good faith because it is frivolous. See Baugh v. Taylor,

117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);

FED. R. APP. P. 24(a)(5). However, Forkner has not demonstrated

any nonfrivolous ground for appeal.

Forkner’s claims of false arrest and imprisonment rest on

his allegation that he was acquitted of the burglary charges

against him. He ignores the fact, as demonstrated by the

undisputed summary-judgment evidence, that although he was

acquitted on one count of the two-count burglary indictment at

issue, he was convicted on the other count. Because his

conviction on the burglary charge necessarily implies that

probable cause existed for his arrest, he cannot prevail on his

false-arrest and false-imprisonment claims. See Sappington v.

Bartee, 195 F.3d 234, 237 (5th Cir. 1999); Wells v. Bonner,

45 F.3d 90, 95 (5th Cir. 1995). Forkner’s conviction similarly

defeats his malicious-prosecution claim. See Kerr v. Lyford,

171 F.3d 330, 340 (5th Cir. 1999).
 No. 04-60461
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The summary-judgment dismissal of the conditions-of-

confinement claims also provides no basis for appeal. The

defendants’ summary-judgment evidence shows no constitutional

violation, and, even if Forkner’s self-serving, conclusional

allegations were sufficient to raise a material factual dispute

regarding the conditions of his confinement at Wilkinson County

Jail, he has never alleged or demonstrated any resulting injury,

which defeats the claims. See Memphis Community School Dist. v.

Stachura, 477 U.S. 299, 308-09 (1986).

The IFP motion is DENIED, and the appeal is DISMISSED as

frivolous. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2. Both

the district court’s dismissal and this court’s dismissal of the

instant appeal count as strikes for purposes of 28 U.S.C.

§ 1915(g). See 28 U.S.C. § 1915(e)(2); Adepegba v. Hammons, 103

F.3d 383, 387 (5th Cir. 1996). Forkner is CAUTIONED that if he

accumulates three strikes under § 1915(g), he will not be able to

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 28 U.S.C.

§ 1915(g).

IFP DENIED; APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.