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McCallup v. Moore, 02-60452 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 02-60452 Visitors: 53
Filed: Oct. 29, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-60452 Summary Calendar VERONICA MCCALLUP, Plaintiff-Appellant, versus MIKE MOORE, Defendant-Appellee. - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:02-CV-246-BN - October 29, 2002 Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:* Veronica McCallup, prisoner # K1256, appeals the district court’s dismissal of her civil rights complaint as malicious and for fai
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                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 02-60452
                          Summary Calendar




VERONICA MCCALLUP,
                                          Plaintiff-Appellant,
versus


MIKE MOORE,
                                          Defendant-Appellee.


                         --------------------
            Appeal from the United States District Court
              for the Southern District of Mississippi
                       USDC No. 3:02-CV-246-BN
                         --------------------
                           October 29, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Veronica McCallup, prisoner # K1256, appeals the district

court’s dismissal of her civil rights complaint as malicious and

for failure to state a claim.    See 28 U.S.C. § 1915(e)(2)(B)(i),

(ii).    A district court is required to dismiss a prisoner’s in

forma pauperis (IFP) civil rights complaint, sua sponte, if the

court determines that the action is frivolous or malicious or

fails to state a claim.    Black v. Warren, 
134 F.3d 732
, 733 (5th


     *
        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that this opinion should not be published and is not precedent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.
Cir. 1998); see 28 U.S.C. § 1915(e)(2)(B).     McCallup has

abandoned the issue of the district court’s dismissal of her

claims as duplicative by failing to brief the issue on appeal.

See Yohey v. Collins, 
985 F.2d 222
, 224-25 (5th Cir. 1993); see

28 U.S.C. § 1915(e)(2)(B)(i).     McCallup has not demonstrated that

the district court erred in dismissing for failure to state a

claim her claim of unlawful confinement.     See Heck v. Humphrey,

512 U.S. 477
, 486-87 (1994); 28 U.S.C. § 1915(e)(2)(B)(ii).

McCallup has shown no abuse of discretion in the dismissal of her

complaint without providing her an opportunity to amend.      See

Jones v. Greninger, 
188 F.3d 322
, 326-27 (5th Cir. 1999).

     McCallup’s appeal is without arguable merit and is therefore

frivolous.     See Howard v. King, 
707 F.2d 215
, 219-20 (5th Cir.

1983).     Accordingly, McCallup’s appeal is DISMISSED.   See 5TH CIR.

R. 42.2.    This court recently has cautioned McCallup that because

of her accumulation of strikes for purposes of 28 U.S.C.

§ 1915(g), she may not proceed IFP in any civil action or appeal

filed while she is incarcerated or detained in any facility

unless she is in imminent danger of serious physical injury.        See

28 U.S.C. § 1915(g); McCallup v. Musgrove, No. 02-60233 (5th Cir.

Aug. 20, 2002) (unpublished); McCallup v. Miss. Dep’t of

Corrections, No. 02-60243 (5th Cir. Aug. 20, 2002) (unpublished).

McCallup is hereby further cautioned that the prosecution of

additional frivolous appeals will invite the imposition of




                                   2
additional sanctions.   McCallup should review any pending appeals

to determine whether they raise frivolous issues.

     APPEAL DISMISSED; THREE-STRIKES BAR NOTED; SANCTION WARNING

ISSUED.




                                 3

Source:  CourtListener

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