     Case: 11-10716     Document: 00511800409         Page: 1     Date Filed: 03/26/2012




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

                                                                            FILED
                                                                          March 26, 2012
                                     No. 11-10716
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KENDRICK JERMAINE FULTON, also known as Ken Fulton,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:02-CR-94-2


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Kendrick Jermaine Fulton, federal prisoner # 30080-177, has moved for
leave to proceed in forma pauperis (IFP) in his appeal of an order of the district
court that (1) denied Fulton’s 18 U.S.C. § 3600 motion for DNA testing, and
(2) imposed a pre-filing injunction on account of Fulton’s repeated frivolous
filings. A movant seeking leave to proceed IFP on appeal must show that he is
unable to bear the costs of an appeal and that the appeal is taken in good faith.
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). When a district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10716

certifies that an appeal is not taken in good faith under 28 U.S.C. § 1915(a)(3)
and Fed. R. App. P. 24(a)(3), the litigant may either pay the filing fee or
challenge the court’s certification decision. Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Our inquiry into Fulton’s good faith “is limited to whether the
appeal involves ‘legal points arguable on their merits (and therefore not
frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted).
If “the merits are so intertwined with the certification decision as to constitute
the same issue,” we may determine the merits as well as the appropriateness of
the IFP status. Baugh, 117 F.3d at 202.
      The motion for DNA testing concerned a bag that allegedly contained
cocaine base; Fulton also sought discovery related to his motion. Fulton argues
that he satisfied the statutory prerequisites for DNA testing. He also contends
that the district court erred by denying his motion for DNA testing without
notifying the Government and giving it an opportunity to respond.
      Under § 3600(a), the district court “shall order” DNA testing of specified
evidence if it determines that 10 listed prerequisites are met. Our review shows
that the prerequisites plainly were not satisfied in this matter: The identity of
the perpetrator was not at issue at trial, and the motion for DNA testing was not
made in a timely fashion. See § 3600(a)(7), (10). As Fulton suffered no prejudice
from the district court’s denial of the motion without notifying the Government,
any error under § 3600(b) was harmless. Because there was no reversible error
in the denial of the motion for DNA testing and discovery, the district court’s
judgment is in this regard affirmed.
      Fulton contends that the district court erred by imposing restrictions on
his future filings without affording him an opportunity to be heard. He argues
that the restrictions should be vacated and the matter remanded for a hearing.
      The authority of a court to enjoin future filings “flows not only from
various statutes and rules relating to sanctions, but the inherent power of the
court to protect its jurisdiction and judgments and to control its docket.”

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                                   No. 11-10716

Farguson v. MBank Houston, N.A., 808 F.2d 358, 360 (5th Cir. 1986) (footnote
omitted).   The district court is permitted to act sua sponte in imposing
restrictions on future filings. Qureshi v. United States, 600 F.3d 523, 526 (5th
Cir. 2010). “[O]ur precedent governing the imposition of pre-filing injunctions
on vexatious litigants states unequivocally that notice and a hearing are
required if the district court sua sponte imposes a pre-filing injunction.” Id.
(internal quotation marks, citations, and brackets omitted).
      Although the district court had previously warned Fulton, prior to the
filing of the motion for DNA testing, that a future frivolous filing would result
in sanctions, including a bar to future filings, it failed to provide an opportunity
for a hearing in this matter. Accordingly, and regardless of the merits of the pre-
filing injunction, as to which we express no opinion, we must vacate the
injunction and remand “for the limited purpose of determining the sanctions
question after proper notice and a hearing consistent with the law of this
Circuit.” Id. at 527.
      In view of the foregoing, Fulton’s IFP motion is granted. His motion for
supplemental briefing is denied.
      IFP GRANTED; MOTION FOR SUPPLEMENTAL BRIEFING DENIED;
DENIAL OF MOTION FOR DNA TESTING AFFIRMED; PRE-FILING
INJUNCTION VACATED AND REMANDED TO DETERMINE THE
SANCTIONS QUESTION AFTER PROPER NOTICE AND A HEARING.




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