     Case: 11-20263     Document: 00511749652         Page: 1     Date Filed: 02/07/2012




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

                                                                            FILED
                                                                         February 7, 2012
                                     No. 11-20263
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

BARRY EMMETT,

                                                  Plaintiff-Appellant

v.

SERGEANT HAWTHORN; SERGEANT HOLLAND; SERGEANT DUDLEY,

                                                  Defendants-Appellees


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-4034


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Barry Emmett, Texas prisoner # 1383329, requests authorization to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of
his 42 U.S.C. § 1983 complaint in part as malicious and in part for failure to
state a claim upon which relief may be granted. Among other claims, Emmett
alleged that Sergeant Dudley refused to transfer him to another cell after his cell
became uninhabitable following a fire and that Dudley ordered a frivolous
disciplinary action to be written against him. According to Emmett, Dudley’s

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20263

actions were in retaliation for his filing of grievances, amounted to cruel and
unusual punishment, and violated his substantive due process and equal
protection rights. The district court denied Emmett’s request for leave to
proceed IFP on appeal on the ground that his appeal was not taken in good faith.
      A movant for leave to proceed IFP on appeal must show that he is
economically eligible and that the appeal is taken in good faith. See 28 U.S.C.
§ 1915(a)(3); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). We construe
Emmett’s instant IFP motion as a challenge to that district court’s certification
that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997). “An investigation into the [IFP] movant’s objective good
faith, while necessitating a brief inquiry into the merits of an appeal, does not
require that probable success be shown.” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983). Rather, our inquiry into an appellant’s good faith “is limited to
whether the appeal involves legal points arguable on their merits (and therefore
not frivolous).” Id. (quotation marks and citation omitted). If we uphold the
district court’s certification that the appeal is not taken in good faith, we may
dismiss the appeal sua sponte as frivolous. See Baugh, 117 F.3d at 202 & n.24;
5TH CIR. R. 42.2.
      Emmett’s arguments concern only his claims against Dudley. He has thus
waived any challenge to the district court’s dismissal of the other claims in his
complaint. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). The
district court dismissed Emmett’s claims against Dudley as malicious under 28
U.S.C. § 1915(e)(2)(B)(i). Its dismissal on that basis is reviewed for abuse of
discretion. See Ruiz, 160 F.3d at 275.
      An action may be dismissed as malicious if it duplicates claims raised by
the same plaintiff in previous or pending litigation. Pittman v. Moore, 980 F.2d
994, 994-95 (5th Cir. 1993). An action is duplicative if it involves “the same
series of events” and allegations of “many of the same facts as an earlier suit.”



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                                  No. 11-20263

Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). Emmett asserts that he
has not filed any other action against Dudley apart from the instant case.
      At the time of the district court’s dismissal, Emmett had identical
allegations against Dudley pending in two other cases: Emmett v. English, No.
4:10-CV-3460 (S.D. Tex.), and Emmett v. English, No. 4:10-CV-4011 (S.D. Tex.).
Thus, the district court did not abuse its discretion in concluding that Emmett’s
claims against Dudley were malicious. See Pittman, 980 F.2d at 995 (“When
declaring that a successive [IFP] suit is ‘malicious’ the court should insure that
the plaintiff obtains one bite at the litigation apple—but not more.”). Emmett
has not shown that the district court was incorrect in certifying that his appeal
was taken in bad faith, and his IFP motion is denied. See Baugh, 117 F.3d at
202. The instant appeal is without arguable merit and is dismissed as frivolous.
See id. at 202 n.24; Howard, 707 F.2d at 219-20; 5TH CIR. R. 42.2.
      As we recognized on April 29, 2011, Emmett has accumulated at least
three strikes for purposes of § 1915(g) and may no longer 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 Emmett v. Ebner,
423 F. App’x 492, 494 (5th Cir. 2011); see also Emmett v. Office of the Clerk of
Court, No. 7:10-CV-156 (N.D. Tex. Nov. 1, 2010) (resulting in strike based on
dismissal of complaint as frivolous pursuant to § 1915(e)(2)(B)(i)). The § 1915(g)
bar has not been applied here because the instant appeal was filed before
imposition of the bar. See Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998).
However, we reiterate our prior warning to Emmett 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. Emmett is further
warned that, in order to avoid the imposition of sanctions, he should review any
pending appeals and actions and move to dismiss any that are frivolous.



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                              No. 11-20263

     APPEAL DISMISSED; MOTION FOR LEAVE TO PROCEED IFP
DENIED; SANCTION WARNING ISSUED.




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