* 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that this opinion should not be published and is not precedent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. 02-60243

Conference Calendar

 

VERONICA MCCALLUP,

Plaintiff-Appellant,

versus

MISSISSIPPI DEPARTMENT OF CORRECTIONS, 

Defendant-Appellee.

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

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:02-CV-80-WS

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

August 20, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges. 

PER CURIAM:*

Veronica McCallup, Mississippi prisoner # K1256, challenges

the district court’s 28 U.S.C. § 1915(e)(2)(b)(i) dismissal of

her 42 U.S.C. § 1983 complaint seeking injunctive relief and 

compensatory and punitive damages. The complaint alleges that

McCallup is classified as “black” in prison documents and as an

“offender” in prison mail, and seeks injunctive relief to end

such designations. A complaint filed in forma pauperis may be
No. 02-60243

-2-

dismissed as frivolous if it lacks an arguable basis in law or

fact. See Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). 

“A complaint lacks an arguable basis in law if it is based on an

indisputably meritless legal theory, such as if the complaint

alleges the violation of a legal interest which clearly does not

exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999)

(internal quotation and citation omitted). McCallup cites no

authority establishing that her allegations rise to the level of

a constitutional violation, and has failed to show that the

district court erred in dismissing her claim for injunctive

relief as frivolous. 

The district court also determined that McCallup’s complaint

was malicious because it duplicated the allegations of other

pending federal lawsuits. A complaint filed in forma paueris is

malicious if it duplicates the allegations of another complaint

filed by the same plaintiff. See Pittman v. Moore, 980 F.2d 994,

994-95 (5th Cir. 1993); Wilson v. Lynaugh, 878 F.2d 846, 850 (5th

Cir. 1989). Because McCallup has failed to brief adequately any

argument that her complaint was not malicious under the standards

of Pittman and Wilson, the argument is deemed abandoned. See

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). McCallup

has failed to show that the district court’s dismissal was error. 

We cannot agree with McCallup that the district court erred

in dismissing her complaint without providing an opportunity to

amend. A court does not err in dismissing a case without
No. 02-60243

-3-

providing an opportunity to amend when no viable claim is

perceptible from the underlying facts asserted in the plaintiff’s

pleadings. See Jones v. Greninger, 188 F.3d 322, 326-27 (5th

Cir. 1999). Nor do we consider the claims newly-raised by

McCallup in her appellate brief. See Burch v. Coca-Cola, 119

F.3d 305, 319 (5th Cir. 1997)(“This Court will not consider on

appeal a claim not submitted to the district court.”).

McCallup’s appeal is without arguable merit, is frivolous,

and is therefore DISMISSED. See Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The district court’s

dismissal of McCallup’s complaint counts as a strike for purposes

of 28 U.S.C. § 1915(g), as does this court’s dismissal of the

instant appeal. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th

Cir. 1996). Considering the two strikes we assessed today in

McCallup v. Musgrove, No. 02-60233, McCallup has now accumulated

at least three strikes under the statute. Accordingly, she may

not proceed in forma pauperis in any civil action or appeal filed

while she is incarcerated or detained in any facility unless she

is in imminent danger of serious physical injury. See 28 U.S.C.

§ 1915(g).

APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.