* 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this opinion should not be published and is not precedent except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. 03-31203

Conference Calendar

 

VINCENT MARK CASTILLO,

Plaintiff-Appellant,

versus

STEVEN ASPARION; MICHAEL ARCULETA; IRENE WHARTON; 

UNIDENTIFIED PARTIES; LOUIS STEWART, Police Officer;

PATRICK GALLAGHER, Police Officer; KEVIN TREIGLE, 

Police Officer; LAWRENCE LACROUTS, Police Officer; 

EDDIE ROSE, Police Officer, 

Defendants-Appellees.

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

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 03-CV-29

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

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

Vincent Mark Castillo, Louisiana prisoner # 428777, filed

this 42 U.S.C. § 1983 action on November 30, 2002, while he was

out on parole. During the pendency of the litigation, Castillo

was reincarcerated. The district court granted the defendants’

FED. R. CIV. P. 12(b)(6) motion to dismiss and dismissed this

action with prejudice, concluding that Castillo had failed to

United States Court of Appeals

Fifth Circuit

F I L E D

August 18, 2004

Charles R. Fulbruge III

Clerk
No. 03-31203

- 2 -

state a claim under either the First or Fourth Amendment against

any of the defendants.

Castillo appeals, listing five issues on appeal in which he

poses general questions not tied to the facts in his case or to

the reasons of the district court in dismissing his action. In

his statement of facts, Castillo repeats the allegations stated

in his complaint with no citations to the record. He makes

general statements of law, citing a few First and Fourth

Amendment cases, but he makes no attempt to integrate these cases

into an argument about why, based on the facts he alleged, the

district court erred in dismissing his complaint because he had

failed to state a claim.

Castillo’s appeal is subject to dismissal for failure to

comply with the rules requiring citations to the record and

relevant legal authority. See Moore v. FDIC, 993 F.2d 106, 107

(5th Cir. 1993); FED. R. APP. P. 28(a).

Further, Castillo does not state why the district court’s

reasons for dismissal are erroneous. He does not address the

merits of the district court's opinion. Failure to identify any

error in the district court's analysis or application to the

facts of the case is the same as if the appellant had not

appealed that judgment. Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Castillo’s appeal is without arguable merit and is

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
No. 03-31203

- 3 -

1983). Because the appeal is frivolous, it is DISMISSED. See

5TH CIR. R. 42.2.

Castillo has been a frequent litigant in this court. 

Castillo has one strike under 28 U.S.C. § 1915(g) for the

dismissal of his appeal as frivolous in Castillo v. State of

Louisiana, No. 03-30856 (5th Cir. Feb. 18, 2004). The district

court’s dismissal of his claims for failure to state a claim

under FED. R. CIV. P. 12(b)(6) in this case does not count as a

strike under 28 U.S.C. § 1915(g) because Castillo was not

incarcerated when he filed this complaint. See Gay v. Texas

Department of Corrections, 117 F.3d 240, 241-42 (5th Cir. 

1997) (application of PLRA depends upon whether the litigant was

incarcerated at the time of filing). Castillo is hereby informed

that the dismissal of this appeal as frivolous counts as his

second strike for purposes of 28 U.S.C. § 1915(g). See Adepegba

v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (“[D]ismissals as

frivolous in the district courts or the court of appeals count

[as strikes] for the purposes of [§ 1915(g)].”). Castillo is

cautioned that once he accumulates three strikes, he may not

proceed IFP 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).

In Castillo v. Hebert, No. 02-31132 (5th Cir. Aug. 19,

2003), this court warned Castillo that future frivolous appeals

would invite sanctions. Castillo is ORDERED to pay sanctions in
No. 03-31203

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the amount of $255, payable to the Clerk of this Court. The

Clerk of this Court and the clerks of all federal district courts

within this Circuit are directed to refuse to file any pro se

civil complaint or appeal by Castillo unless Castillo submits

proof of satisfaction of this sanction. If Castillo attempts to

file any further notices of appeal or original proceedings in

this court without such proof, the clerk will docket them for 

administrative purposes only. Any other submissions which do not

show proof that the sanction has been paid will be neither

addressed nor acknowledged.

APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) WARNING

ISSUED; MONETARY SANCTION IMPOSED.