Burton v. Dillard, et al

Filing 920091009

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-60667 Summary Calendar October 9, 2009 Charles R. Fulbruge III Clerk

SHAWN BURTON, Plaintiff-Appellant v. FRANK DILLARD; MICHAEL JAMES MAGAYHEE; CITY OF RIDGELAND MISSISSIPPI; ANITA WITTINGTON; EMERY E. DYER; TERRENCE BOUDREAUX; ROCCO BONURA; THE BULLDOG INC., Defendants-Appellees -----------------------------------------------------------------------------------------SHAWN BURTON, Plaintiff-Appellant v. CHIEF OF POLICE, City of Ridgeland; DIRECTOR OF INTERNAL AFFAIRS DIVISION, City of Ridgeland; COMMAND SERGEANTS, City of Ridgeland; POLICE OFFICERS UNKNOWN, City of Ridgeland; CITY MANAGER, City of Ridgeland; THE CITY OF RIDGELAND, MISSISSIPPI, Defendants-Appellees

Appeals from the United States District Court for the Southern District of Mississippi USDC No. 3:05-CV-292 USDC No. 3:06-CV-266

No. 08-60667 Before KING, STEWART, and HAYNES, Circuit Judges. PER CURIAM:* Shawn Burton, Mississippi prisoner # 82975, appeals the dismissal of his two civil rights complaints in which he argued that his August 9, 1999 arrest was unlawful on various grounds. As a result of that arrest, he was charged with robbery, auto burglary, and kidnapping; he was eventually convicted of robbery. See Burton v. State, 914 So. 2d 288, 289 (Miss. Ct. App. 2005). Burton also complains that his claims were improperly consolidated. We discern no abuse of discretion in the district court's decision to consolidate the matters. See Green v. Polunsky, 229 F.3d 486, 488 (5th Cir. 2000). With respect to the merits, the district court did not err in dismissing Burton's claims under Heck v. Humphrey, 512 U.S. 477 (1994). See Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995). As Burton's appeal presents no legal points arguable on their merits, it is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is dismissed. See 5 TH C IR. R. 42.2. The dismissal of this appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Burton previously accumulated two strikes in the prior § 1983 action challenging the legality of his arrest. Accordingly, Burton is now barred from proceeding in forma pauperis pursuant to § 1915 in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is in imminent danger of serious physical injury. See § 1915(g). APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.

Pursuant to 5 TH C IR. 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 5 TH C IR. R. 47.5.4. 2

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