Barber v. Burke, No. 21-60725 (5th Cir. 2022)
Annotate this Case
Download PDF
Case: 21-60725 Document: 00516272742 Page: 1 Date Filed: 04/08/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 8, 2022 No. 21-60725 Lyle W. Cayce Clerk Demetrius Barber, Plaintiff—Appellant, versus James Burke, Individual Capacity; P. Wiley, Individual Capacity; R. Pennington, Individual Capacity, Defendants—Appellees. Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:21-CV-4 Before Smith, Higginson, and Willett, Circuit Judges. Per Curiam:* Demetrius Barber, Mississippi prisoner #K6330, seeks leave to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of his 42 U.S.C. § 1983 lawsuit as frivolous. By moving to proceed IFP, he is challenging the district court’s certification pursuant to 28 U.S.C. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-60725 Document: 00516272742 Page: 2 Date Filed: 04/08/2022 No. 21-60725 § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3)(A) that any appeal would not be taken in good faith because, for the reasons relied upon in the order and judgment, Barber will not present a nonfrivolous appellate issue. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Barber argues that he is financially eligible to proceed IFP and that he has meritorious Eighth Amendment claims that have never been considered on the merits, subjected to discovery or an evidentiary hearing, or responded to by the defendants. Barber has failed to brief, and thus abandoned, any argument challenging the district court’s conclusion that his claims are identical to those he raised against the same defendants in a previous lawsuit and thus barred by res judicata. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Even had Barber briefed the argument, it would be unavailing. See United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994). The appeal is without arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Consequently, the IFP motion is denied, and the appeal is dismissed. See Baugh, 117 F.3d at 202 & n.24; 5th Cir. R. 42.2. The district court’s dismissal of the complaint as frivolous and the dismissal as frivolous of this appeal each count as a strike under 28 U.S.C. § 1915(g).See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996), abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S. 532, 537 (2015). Barber has one previous strike. See Barber v. Burke, No. 4:18-CV-149, 2019 WL 165716 (N.D. Miss. Jan. 10, 2019). He now has three strikes. See Coleman, 575 U.S. at 537. Thus, he is now barred from proceeding IFP in any civil action or appeal filed while he is incarcerated or detained unless he is under imminent danger of serious physical injury. See § 1915(g); McGarrah 2 Case: 21-60725 Document: 00516272742 Page: 3 Date Filed: 04/08/2022 No. 21-60725 v. Alford, 783 F.3d 584, 585 (5th Cir. 2015). He is WARNED that any pending or future frivolous or repetitive filings in this court or any court subject to this court’s jurisdiction may subject him to additional sanctions, and he is directed to review all pending matters and move to dismiss any that are frivolous, repetitive, or otherwise abusive. MOTION DENIED; APPEAL DISMISSED FRIVOLOUS; SANCTION IMPOSED; WARNING ISSUED. 3 AS
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
