Mitchell v. Garrett, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10686
Conference Calendar
TONY RAY MITCHELL,
Plaintiff-Appellant,
versus
GERALD GARRETT; CRAIG HINES; NICKI WEAVER,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CV-235-A
--------------------
December 13, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Tony Ray Mitchell, Texas prisoner # 488816, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). Mitchell argues
that the district court erred in dismissing his 42 U.S.C. § 1983
action as barred by the doctrine of res judicata. Because the
instant action involves the identical parties and the same cause
of action as Mitchell’s prior civil action in Case No. 4:00-CV-
040-Y, and because a final judgment was rendered by a court of
competent jurisdiction in the prior action, the district court

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No. 00-10686
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did not err in holding that the instant action is barred by the
doctrine of res judicata. See Travelers Ins. Co. v. St. Jude
Hosp. of Kenner, La., Inc., 37 F.3d 193, 195 (5th Cir. 1994).
Mitchell’s appeal is without arguable merit, and is thus,
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, Mitchell’s appeal is DISMISSED. See 5TH CIR.
R. 42.2. Mitchell is advised that the district court’s dismissal
of this action and this court’s dismissal of this appeal both
count as “strikes” for the purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Mitchell
is also advised that if he accumulates three strikes, he will be
barred from bringing a civil action or an appeal in forma
pauperis unless he is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g). Mitchell is advised to review
any pending pleadings or appeals to ensure that they do not raise
any frivolous claims.
APPEAL DISMISSED; SANCTION WARNING ISSUED.

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