     Case: 12-60758       Document: 00512229576         Page: 1     Date Filed: 05/03/2013




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

                                                                            FILED
                                                                            May 3, 2013
                                     No. 12-60758
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk



RICKY LEVERT FRANKLIN,

                                                  Plaintiff–Appellant,

versus

HINDS COUNTY SHERIFF DEPARTMENT;
REBECCA PITTMAN, Sheriff Investigator;
JAMIE K. MCBRIDE, Assistant District Attorney,

                                                  Defendants–Appellees.



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                 No. 3:12-CV-423




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Ricky Franklin, Mississippi prisoner # 101951, appeals the dismissal of his
third 42 U.S.C. § 1983 action alleging constitutional violations resulting from his
arrest and prosecution for aggravated assault, sexual battery, rape, and kidnap-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60758

ing, with all charges arising from the same incident. Franklin was convicted of
aggravated assault and kidnaping and was acquitted on the sexual battery
charge; the jury hung on the rape charge. The thrust of Franklin’s argument is
that there was insufficient evidence to charge and prosecute him for rape and
sexual battery and that that is evidenced by his acquittal on the sexual battery
charge and by the hung jury on the rape charge. Given the slanderous nature
of such charges, he avers, his Fourth and Fourteenth Amendment rights were
violated.
      Franklin previously sued Hinds County Sheriff’s Investigator Pittman,
Assistant District Attorney McBride, the Hinds County Sheriff, and Hinds
County District Attorney Robert Smith in two § 1983 actions arising from the
aforementioned incident. His claims were either denied or dismissed based on
qualified immunity, prosecutorial immunity, or Heck v. Humphrey, 512 U.S. 477
(1994), and as conclusional, frivolous, or repetitive. He seeks to relitigate the
claims in the instant § 1983 action.
      The doctrine of res judicata bars the re-litigation of claims that either have
been litigated or should have been raised in an earlier suit. St. Paul Mercury
Ins. Co. v. Williamson, 224 F.3d 425, 436 (5th Cir. 2000). For true res judicata
to apply, four elements must be satisfied: (1) The parties in the lawsuits must
be either identical or in privity with one another; (2) the judgment must have
been rendered by a court of competent jurisdiction; (3) the action must have con-
cluded with a final judgment on the merits; and (4) the same claim or cause of
action must be involved in both suits. Southmark Corp. v. Coopers & Lybrand
(In re Southmark Corp.), 163 F.3d 925, 934 (5th Cir. 1999).
      Franklin’s claims against McBride, individually, are barred by prosecuto-
rial immunity; his claims against Investigator Pittman, individually, are barred
by qualified immunity; and his claims against the Sheriff’s Department, which
were actually against the county, failed to state a constitutional violation. Those
claims either were or should have been raised in his first or second § 1983 action.

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                                  No. 12-60758

See id. Furthermore, Franklin does not address the district court’s findings that
McBride and Pittman are immune from suit or that the sheriff’s department is
not a separate legal entity. Franklin has therefore abandoned any such argu-
ments. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      As for the claims against Hinds County, which include those against Pitt-
man and McBride in their official capacities, see Kentucky v. Graham, 473 U.S.
159, 165–66 (1985), there is no dispute regarding the first three prongs of the res
judicata test. As for the fourth, this court determines whether two suits involve
the same claim or cause of action by applying a “transactional test.” United
States v. Davenport, 484 F.3d 321, 326 (5th Cir. 2007). Under that test, the
inquiry focuses on whether the two cases under consideration are based on the
same nucleus of operative facts. Id. If so, the judgment’s preclusive effect
extends to all rights the original plaintiff had with respect to all or any part of
the transaction from which the original suit arose. Id.
      Franklin’s claims satisfy that test, because they all stem from his arrest
and prosecution for the referenced assault and kidnaping, so they are barred by
res judicata. The district court did not err in so finding, and most importantly,
Franklin does not argue otherwise.
      Because the appeal does not raise an issue of arguable merit, it is frivo-
lous, Howard v. King, 707 F.2d 215, 219–20 (5th Cir. 1983), and is therefore
DISMISSED, see 5TH CIR. R. 42.2. This dismissal counts as Franklin’s third
strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-
87 (5th Cir. 1996). In accordance with § 1915(g), Franklin is barred from pro-
ceeding in forma pauperis in any civil action or appeal filed while he is incarcer-
ated or detained in any facility unless he “is under imminent danger of serious
physical injury.” § 1915(g). We warn Franklin that any additional frivolous
appeals will invite sanctions. Franklin is further cautioned to review any pend-
ing appeals to ensure that they do not raise arguments that are frivolous.



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