Summary Calendar HARVEY WENDT v. JOHN DRAINEY, Judge, PATRICK EHIGGINBOTHAM, Judge, JERRY ESMITH, Judge, GARY…

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 26, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-21229
Summary Calendar
HARVEY WENDT
Plaintiff - Appellant
v.
JOHN D RAINEY, Judge, PATRICK E HIGGINBOTHAM, Judge, JERRY E
SMITH, Judge, GARY WAKEFIELD, Warden, EDITH B CLEMENT, Judge
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CV-2113
--------------------
Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Harvey Wendt, Texas prisoner # 537128, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action as malicious
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). He argues that the
district court erred in raising res judicata sua sponte and that
the district court erred in dismissing his claims against Warden
Wakefield. A review of the allegations made by Wendt against
Wakefield in his previous lawsuit shows that they are

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No. 03-21229
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sufficiently similar to the allegations made against Wakefield in
this case. Therefore, the district court did not abuse its
discretion in dismissing Wendt’s claims against Wakefield as
malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See Pittman
v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993).
Wendt argues that Judge John D. Rainey, and Circuit Judges
Patrick E. Higginbotham, Jerry E. Smith, and Edith B. Clement
conspired to deprive him of his right to a full and fair hearing
of his claims against Wakefield in his previous appeal of the
dismissal of his first 42 U.S.C. § 1983 action. Although the
judges are not entitled to absolute immunity from suit for
injunctive relief or declaratory relief under § 1983, see Chrissy
F. by Medley v. Miss. Dep’t of Publ Welfare, 925 F.2d 844, 849
(5th Cir. 1991), the district court did not abuse its discretion
in dismissing this claim as it is without arguable merit and,
therefore, frivolous. See Bradley v. Puckett, 157 F.3d 1022,
1025 (5th Cir. 1998).
Wendt’s appeal is without arguable merit and, therefore, it
is DISMISSED as frivolous. See Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. Wendt received a strike
under 28 U.S.C. § 1915(g) in Wendt v. Wakefield, No. H:01-CV-1983
(S.D. Tex. Aug. 5, 2002), and in Wendt v. Wakefield, No. 02-20998
(5th Cir. Jan. 23, 2003). The district court’s dismissal of
Wendt’s complaint as malicious under 28 U.S.C. § 1915(e)(2)(B)(i)
and this court’s dismissal of this appeal as frivolous both count

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as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996). Wendt has now accumulated at
least three strikes under 28 U.S.C. § 1915(g), and he may not
proceed in forma pauperis 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).
APPEAL DISMISSED; 28 U.S.C. § 1915(G) BAR IMPOSED.

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