United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 06-40112
Conference Calendar
AMOS FENNELL,
Plaintiff-Appellant,
versus
SCHWEITZER, Judge; KIRK SISTRUNK, District Attorney; ROY
QUINTANILLA, Judge,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:05-CV-548
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Amos Fennell, Texas prisoner # 146234, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint for failure
to state a claim and as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2). We review a dismissal for failure to state a claim
de novo and we review a dismissal as frivolous for abuse of
discretion. Morin v. Moore, 309 F.3d 316, 319 (5th Cir. 2002);
Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).
*
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this opinion should not be published and is not precedent except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. 06-40112
-2-
Fennell claims that he was retried on a case that had
previously been dismissed by Judge Schweitzer. He asserts that
Judge Schweitzer made false statements and falsified state
documents.
Fennel does not address the district court’s determination
that Judge Schweitzer is entitled to judicial immunity. See
Stump v. Sparkman, 435 U.S. 349, 357-60 (1978). He has therefore
waived the issue. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
Fennell’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is dismissed. See
5TH CIR. R. 42.2. The district court’s dismissal of Fennell’s
§ 1983 lawsuit and this court’s dismissal of this appeal count as
two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Fennell has
accumulated at least two other strikes. See Fennell v. Sistrunk,
No. 06-40090 (5th Cir. Aug. 28, 2006) (unpublished). As he has
at least three strikes under § 1915(g), Fennell 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. See Adepegba,
103 F.3d at 388; § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.