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Carbin v. State of MS, 03-60424 (2003)

Court: Court of Appeals for the Fifth Circuit Number: 03-60424 Visitors: 11
Filed: Aug. 19, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 20, 2003 Charles R. Fulbruge III Clerk No. 03-60424 Conference Calendar CHRISTOPHER CARBIN, Plaintiff-Appellant, versus STATE OF MISSISSIPPI; MIKE MOORE, The Attorney General of the State of Mississippi, in his individual and official capacities; EMILIO GARZA, Circuit Court Judge, in his individual and official capacities; GEORGE CARLSON, Circuit Judge in his individual and o
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 20, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-60424
                        Conference Calendar



CHRISTOPHER CARBIN,

                                    Plaintiff-Appellant,

versus

STATE OF MISSISSIPPI; MIKE MOORE, The Attorney General of
the State of Mississippi, in his individual and official
capacities; EMILIO GARZA, Circuit Court Judge, in his
individual and official capacities; GEORGE CARLSON,
Circuit Judge in his individual and official capacities,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                    USDC No. 4:02-CV-186-PB
                      --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Christopher Carbin, Mississippi inmate # 44718, proceeding

pro se, moves for leave to proceed in forma pauperis in the

appeal of the district court’s dismissal as frivolous pursuant to

28 U.S.C. § 1915(e)(2)(B)(i) of his 42 U.S.C. § 1983 complaint.

Carbin’s motion is a challenge to the district court’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.
                             No. 03-60424
                                  -2-

certification that his appeal is not taken in good faith.      Baugh

v. Taylor, 
117 F.3d 197
, 202 (5th Cir. 1997).

     Carbin’s challenge to the dismissal pursuant to Heck v.

Humphrey, 
512 U.S. 477
, 487, 489 (1994), of his 42 U.S.C. § 1983

claims is frivolous.    Relief on Carbin’s claims would necessarily

imply the invalidity of his conviction or sentence, and Carbin

has not shown that his conviction or sentence has been reversed,

expunged, or otherwise invalidated.     See 
id. Carbin’s challenge
to the dismissal of his claims against

Judges Garza and Carlson and Attorney General Moore on the

grounds that these defendants are entitled to absolute immunity

is also frivolous.     Krueger v. Reimer, 
66 F.3d 75
, 76-77 (5th

Cir. 1995); Boyd v. Biggers, 
31 F.3d 279
, 284-85 (5th Cir. 1994).

     Carbin has not shown that the district court erred in

certifying that an appeal would not be taken in good faith.     He

has not shown that he will present a nonfrivolous issue on

appeal.   Howard v. King, 
707 F.2d 215
, 220 (5th Cir. 1983).

Accordingly, the motion for leave to proceed in forma pauperis is

DENIED and the appeal is DISMISSED as frivolous.     
Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2.

     The dismissal of this appeal and the district court’s

dismissal of Carbin’s 42 U.S.C. § 1983 complaint as frivolous

count as strikes under the Prison Litigation Reform Act.

Adepegba v. Hammons, 
103 F.3d 383
, 387 (5th Cir. 1996).     This

court previously dismissed as frivolous Carbin’s appeals in
                           No. 03-60424
                                -3-

Carbin v. United States Navy, et al., No. 95-60544 (5th Cir. Oct.

19, 1995), and Carbin v. Danzig, No. 03-60114 (5th Cir. Aug. 18,

2003).   
Adepegba, 103 F.3d at 386-87
.    Because Carbin had

accumulated more than three strikes under 28 U.S.C. § 1915(g),

the court in Carbin v. Danzig, No. 03-60114 (5th Cir. Aug. 18,

2003), informed Carbin that he was BARRED from proceeding 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.   28 U.S.C. § 1915(g).

     IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915 BAR

IMPOSED.

Source:  CourtListener

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