* 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should not be published and is not precedent except under the limited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. 07-20312

Summary Calendar

ALFRED LEE BRANUM

Plaintiff-Appellant

v.

GARY JOHNSON; MARK LAUGHLIN, Warden; CAREY STAPLES, Assistant

Warden; JANET CANTU; SHIRLEY CLAYBORN; DAVID RICE; SARAH

VACANTE; BOBBY GAFFARD; TEXAS DEPARTMENT OF CRIMINAL

JUSTICE; LINDA KIMICH; KIOLA NIAK

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CV-229

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Alfred Lee Branum, Texas prisoner # 286354, appeals

the district court’s dismissal of his 42 U.S.C. § 1983 action as frivolous pursuant

to 28 U.S.C. § 1915A. Branum contends that the district court abused its

discretion by striking his original and first amended complaints for improper

joinder. He maintains that the district court erred by dismissing his claims

United States Court of Appeals

Fifth Circuit

F I L E D

February 14, 2008

Charles R. Fulbruge III

Clerk
No. 07-20312

2

challenging a disciplinary proceeding against him, asserting that the district

court abused its discretion in dismissing his claims against Kiola Niak and

Linda Kimich for improper joinder of defendants under FED. R. CIV. P. 20.

Branum’s original and first amended complaints were long and rambling,

linking numerous claims and defendants that were, at best, tenuously related.

In total, the complaints, memoranda and attachments amounted to 411 pages.

The district court did not abuse its discretion in striking the original and first

amended complaints and ordering Branum to file a second amended complaint

that followed proper rules of joinder. See Arrington v. City of Fairfield, Ala., 414

F.2d 687, 693 (5th Cir. 1969).

Branum did not allege that the disciplinary-infraction conviction he

challenged had been overruled or reversed. He did allege that he lost previously

earned good-time credits as a result of the disciplinary infraction conviction.

Despite his protestation to the contrary, his second amended complaint clearly

sought monetary damages for the disciplinary-infraction conviction. The district

court did not err in dismissing the claims challenging the disciplinary

proceeding. See Clarke v. Stalder, 154F.3d 186, 189-90 (5th Cir. 1998) (en banc).

Branum’s claims against Niak and Kimich involved an assault against

Branum by another inmate and various actions Kimich took towards Branum

after the assault. Although the disciplinary proceeding Branum challenged

stemmed from the fight in which Branum alleges that he was assaulted, his

claims regarding the disciplinary proceeding were not related to the same

incident and did not involve common questions of fact or law as in his claims

against Niak and Kimich. The district court did not abuse its discretion in

dismissing Branum’s claims against Niak and Kimich for improper joinder. See

FED. R. CIV. P. 20; Arrington, 414 F.2d at 693.

Branum’s appeal is without arguable merit and is frivolous. See Howard

v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). As such, his appeal is dismissed.

See 5TH CIR. R. 42.2.
No. 07-20312

3

The dismissal ofthis appeal as frivolous counts as a strike under 28 U.S.C.

§ 1915(g), as does the district court’s dismissal of the complaint. See Adepegba

v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); Patton v. Jefferson Corr. Ctr.,

136 F.3d 458, 464 (5th Cir. 1998) (holding prisoner cannot avoid strike by

improperly joining claims to complaint). Branum has previously accumulated

two strikes. See Branum v. Johnson, No. 07-20093, 2007 WL 4372074 at *1 (5th

Cir. Dec. 11, 2007) (unpublished). As Branum has now accumulated more than

three strikes, he is barred from proceeding in forma pauperis pursuant to § 1915

while he is incarcerated or detained in any facility unless he is in imminent

danger of serious physical injury. See § 1915(g).

APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.