Benny Falcon v. Tyler Holly

Case: 15-10966 Document: 00513644394 Page: 1 Date Filed: 08/19/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-10966 FILED
August 19, 2016

BENNY FALCON, Lyle W. Cayce
Clerk
Plaintiff-Appellant

v.

TYLER HOLLY, Correctional Officer III,

Defendant-Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:09-CV-66

Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Benny Falcon, Texas prisoner # 664986, filed a 42 U.S.C. § 1983 action
against Tyler Holly, an employee of the Texas Department of Criminal Justice,
alleging that Holly used excessive force against him. After a jury trial, the jury
found that Holly did not use excessive force against Falcon, and the district
court entered a judgment in favor of Holly. This court affirmed the district
court’s judgment.

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10966

Over a year after this court’s decision, Falcon filed another notice of
appeal of the district court’s judgment and moved for leave to proceed in forma
pauperis (IFP) on appeal. The district court denied Falcon’s IFP motion and
certified that his appeal was not taken in good faith. By moving for IFP status
in this court, Falcon is challenging the district court’s certification. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Under the doctrine of res judicata or claim preclusion, “a final judgment
on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.” Oreck
Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009) (internal quotation
marks and citation omitted). Because the district court’s judgment has been
affirmed by this court, and this court’s decision has become final, the doctrine
of res judicata precludes Falcon from relitigating the issues that were raised
and decided by the district court and affirmed by this court. See id.
Falcon’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, we deny the IFP
motion and dismiss the appeal. See Baugh, 117 F.3d at 202; 5th Cir. R. 42.2.
The dismissal of the appeal as frivolous counts as a “strike” for purposes of the
“three strikes” bar under 28 U.S.C. § 1915(g). See Coleman v. Tollefson, 135
S. Ct. 1759, 1763 (2015). Falcon previously received two strikes under
§ 1915(g). See Falcon v. Benson, No. 5:09-CV-00073 (N.D. Tex. March 30,
2010); Falcon v. Renouf, No. 5:08-CV-000140 (N.D. Tex. April 20, 2009).
Because Falcon has accumulated three strikes under § 1915(g), he may not
proceed IFP in any civil action or appeal filed in a court of the United States
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).

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 Case: 15-10966 Document: 00513644394 Page: 3 Date Filed: 08/19/2016

No. 15-10966

IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.

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