* 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this opinion should not be published and is not precedent except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

FILED

July 15, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-20444

Summary Calendar

 

ARCADE JOSEPH COMEAUX, JR.,

Plaintiff-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION; RANDALL HEALY; RICK THALER,

Defendants-Appellees.

--------------------

Appeals from the United States District Court

for the Southern District of Texas

(H-01-CV-4264)

--------------------

Before JOLLY, WIENER, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Plaintiff-Appellant Arcade Comeaux, Jr., Texas prisoner #

841331, appeals the district court’s partial dismissal order and

its memorandum of dismissal and final judgment. In its partial

dismissal order, the district court determined that several of

Comeaux’s claims duplicated those pending in another 42 U.S.C. §

1983 suit, dismissed those claims as malicious, instructed Comeaux

to file a shortened amended complaint and a signed motion to
2

proceed in forma pauperis, and also instructed him not to file any

additional pleadings. The district court dismissed Comeaux’s suit

for failure to comply with the court’s orders under FED. R. CIV. P.

41(b), after he filed an amended complaint, a signed IFP motion,

and a number of other pleadings, including a motion for injunctive

relief and challenges to and an attempt to appeal the partial

dismissal order. 

Comeaux’s filings in addition to his amended complaint

following the district court’s explicit and clear instructions not

to file any additional pleadings exhibited contumacious conduct.

The district court did not abuse its discretion when it dismissed

Comeaux’s suit for failure to comply with the court’s orders under

FED. R. CIV. P. 41(b). See Long v. Simmons, 77 F.3d 878, 880 (5th

Cir.1996); McNeal v. Papasan, 842 F.2d 787, 790, 792 (5th Cir.

1988). 

Also without merit are his arguments that (1) he should have

been allowed to file an amended notice of appeal, (2) the district

court lacked jurisdiction over the case once Comeaux filed a notice

of appeal from the partial dismissal order, (3) the district court

should have considered Comeaux’s affidavits and granted his

requests for injunctive relief and for the appointment of counsel,

and (4) he was assessed too many filing fees for his district court

action and appeals. 

With respect to the partial dismissal order, Comeaux was not

entitled to notice before the dismissal of some of his claims as
3

malicious: The district court could dismiss part of Comeaux’s

complaint as malicious, which counted as a strike under 28 U.S.C.

§ 1915(g), even though the case was ultimately dismissed for

failure to comply with court orders. In addition, Comeaux has not

shown that the claims dismissed as malicious did not duplicate

previously filed claims. See 28 U.S.C. § 1915A(a) & (b); Carr v.

Dorvin, 171 F.3d 115, 116 (2d Cir. 1999); Patton v. Jefferson

Correctional Ctr., 136 F.3d 458, 463 (5th Cir. 1998); FED. R. APP.

P. 10(b); United States v. Hinojosa, 958 F.2d 624, 632-33 (5th Cir.

1992). 

The district court did not abuse its discretion in dismissing

some of Comeaux’s claims as malicious or in dismissing his case for

failure to comply with the court’s orders. Comeaux’s appeal lacks

arguable merit and is thus dismissed as frivolous. See Howard v.

King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.

The dismissal of Comeaux’s claims as malicious counts as a

strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996). The dismissal of Comeaux’s appeal

counts as an additional strike, id., and his appeal in case number

01-20584 was dismissed as frivolous, which counts as yet another

strike. Comeaux has now accumulated three strikes. 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. See 28 U.S.C. §

1915(g).
4

APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.