     Case: 11-50126     Document: 00511635825         Page: 1     Date Filed: 10/18/2011




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

                                                                            FILED
                                                                         October 18, 2011
                                     No. 11-50126
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ANTHONY W ROBERSON,

                                                  Plaintiff-Appellant

v.

ROBERT BREEN, Police Officer, San Antonio, Texas; RONALD D. EARLE,
District Attorney, Travis County, Austin, Texas; BUDDY MEYER, Assistant
District Attorney, Travis County, Austin, Texas; MARGO FRAISER, Sheriff of
Travis County, Austin, Texas; STAN HIBBS, Deputy Sheriff of Travis County,
Austin, Texas; BILL SCALLIONS, Deputy Sheriff of Travis County, Austin,
Texas; STANLEY L. KNEE, Chief of Police, Austin, Texas; ROBERT TRAVIS,
Police Officers, Austin, Texas; JOHN DOES, Unknown,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CV-979


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Anthony W. Roberson, Texas prisoner # 838289, moves this court for leave
to proceed in forma pauperis (IFP) on appeal following the dismissal of his
42 U.S.C. § 1983 complaint as malicious, frivolous, and for failure to state a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50126   Document: 00511635825     Page: 2   Date Filed: 10/18/2011

                                 No. 11-50126

claim under 28 U.S.C. § 1915(e)(2)(b) and § 1915A(b)(1). Roberson’s motion is
construed as a challenge to the district court’s determination that the appeal is
not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
This court’s inquiry “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).
      Roberson argues that the district court abused its discretion by dismissing
the case against him under the doctrine of res judicata. The district court did
not find that the complaint was frivolous based on res judicata, but rather, that
the complaint was “duplicative” and, therefore, malicious. An action may be
dismissed as malicious and frivolous 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); Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989).
Roberson has not shown that the district court erred in dismissing his complaint
as duplicative and malicious. See Pittman, 980 F.2d at 994-95. Accordingly, we
do not reach Roberson’s arguments concerning the district court’s alternative
grounds for dismissal of the complaint.
      Roberson’s motion for leave to proceed IFP is denied and the appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24. Roberson’s motion for
the appointment of counsel also is denied. Roberson has accumulated three
strikes for purposes of 28 U.S.C. § 1915(g). Accordingly, he 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 § 1915(g).
      APPEAL DISMISSED; MOTIONS DENIED; 28 U.S.C. § 1915(g) BAR
IMPOSED.




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