James Warren v. Estate of Henry Wade, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [12-11037 Dismissed as Frivolous] Judge: CDK , Judge: WED , Judge: JWE Mandate pull date is 09/23/2013; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. James Anthony Warren [7306332-2] [12-11037]

Case: 12-11037

Document: 00512326692

Page: 1

Date Filed: 07/31/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-11037
Summary Calendar

July 31, 2013
Lyle W. Cayce
Clerk

JAMES ANTHONY WARREN,
Plaintiff-Appellant
v.
THE ESTATE OF HENRY WADE, Dallas County District Attorney; BILL HILL,
Dallas County District Attorney; FAITH SIMMONS, Dallas County District
Attorney; CRAIG WATKINS, Dallas County District Attorney; LARISSA T.
ROEDER, Dallas County Asst. District Attorney,
Defendants-Appellees

Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CV-938

Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
James Anthony Warren, Texas prisoner # 1334008, moves for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C.
§ 1983 complaint. The district court dismissed his complaint as frivolous
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A, reasoning that his claims
were barred by Heck v. Humphrey, 512 U.S. 477 (1994). The district court also
denied Warren’s motion to proceed IFP on appeal and certified that this appeal
was not taken in good faith.
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 12-11037

Document: 00512326692

Page: 2

Date Filed: 07/31/2013

No. 12-11037
By moving to proceed IFP here, Warren is challenging the district court’s
certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Warren’s bare assertions that Heck does not apply to his case are insufficient to
show that the district court erred in certifying that his appeal was not taken in
good faith. See id.; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). His
remaining assertions do not concern Heck and likewise do not demonstrate a
nonfrivolous issue for appeal. The instant appeal is without arguable merit and
is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at
219-20; 5TH CIR. R. 42.2.
Warren filed a prior civil suit that was dismissed by the district court
under § 1915A(b)(1) for failure to state a claim, a decision from which he did not
appeal. Warren v. Hunt Cnty. Criminal Justice Ctr., No. 3:97-CV-705-R (N.D.
Tex. Apr. 30, 1997). That prior dismissal counts as one strike under § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Based on the
district court’s dismissal of his instant complaint and our dismissal of this
appeal as frivolous, Warren has accumulated two additional strikes, for a total
of at least three strikes under § 1915(g). See id. at 388. Thus, Warren may not
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 § 1915(g).
In addition, we warn Warren that frivolous, repetitive, or otherwise
abusive filings will invite the imposition of sanctions, including dismissal,
monetary sanctions, and/or restrictions on his ability to file pleadings in this
court and any court subject to this court’s jurisdiction. Warren is further warned
that he should review any pending appeals and actions and move to dismiss any
that are frivolous.
MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL
DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; SANCTION WARNING
ISSUED.
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