Henry v. Vernon

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 26, 2001
• Docket: 00-11248
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-11248 Conference Calendar

WINDELL EUGENE HENRY,

Plaintiff-Appellant,

versus

MARK A. VERNON, Officer, City of Dallas, Badge #6528; NFN JOHNSON, Officer, City of Dallas, Badge #6304; LORI MONI SCHOENHOLZ, Officer, City of Dallas, Badge #7361; M. L. HENSON, Affiant in arrest #98-080064, service #0945563H, City of Dallas,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CV-1132-H -------------------- October 26, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Windell Eugene Henry (Henry), Texas prisoner #889135,

appeals the district court’s dismissal of his civil rights action

as frivolous under 28 U.S.C. § 1915.

The district court did not indicate whether its dismissal of

Henry’s claims as frivolous was with or without prejudice.

Accordingly, we will presume that the dismissal is without

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-11248 -2-

prejudice. Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993),

abrogated on other grounds by Arvie v. Broussard, 42 F.3d 249,

250 (5th Cir. 1994). Thus, we need not address Henry’s arguments

that the district court erred in dismissing his claims with

prejudice. We nevertheless note that his appellate arguments are

without merit. See Boyd v. Bigger, 31 F.3d 279, 284 (5th Cir.

1994); Lewis v. Beddingfield, 20 F.3d 123, 125 (5th Cir. 1994).

Henry’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. See 5th Cir.

R. 42.2. The dismissal of this appeal and the district court's

dismissal of this lawsuit as frivolous constitute two strikes for

purposes of the 28 U.S.C. § 1915(g) bar. Adepegba v. Hammons,

103 F.3d 383, 388 (5th Cir. 1996). Henry has previously been

issued two strikes by this court. See Henry v. Francis, No. 00-

10623 (5th Cir. Dec. 13, 2000). As Henry has accumulated three

strikes, he may not proceed in forma pauperis in any civil action

or appeal brought in a United States court while he is

incarcerated unless he is under imminent danger of serious

physical injury. See 28 U.S.C. § 1915(g).

DISMISSED AS FRIVOLOUS; SANCTION ISSUED.