IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10716

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KENDRICK JERMAINE FULTON, also known as Ken Fulton,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:02-CR-94-2

Before DENNIS, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Kendrick Jermaine Fulton, federal prisoner # 30080-177, has moved for

leave to proceed in forma pauperis (IFP) in his appeal of an order of the district

court that (1) denied Fulton’s 18 U.S.C. § 3600 motion for DNA testing, and

(2) imposed a pre-filing injunction on account of Fulton’s repeated frivolous

filings. A movant seeking leave to proceed IFP on appeal must show that he is

unable to bear the costs of an appeal and that the appeal is taken in good faith. 

Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). When a district court

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-10716

certifies that an appeal is not taken in good faith under 28 U.S.C. § 1915(a)(3)

and Fed. R. App. P. 24(a)(3), the litigant may either pay the filing fee or

challenge the court’s certification decision. Baugh v. Taylor, 117 F.3d 197, 202

(5th Cir. 1997). Our inquiry into Fulton’s good faith “is limited to whether the

appeal involves ‘legal points arguable on their merits (and therefore not

frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted). 

If “the merits are so intertwined with the certification decision as to constitute

the same issue,” we may determine the merits as well as the appropriateness of

the IFP status. Baugh, 117 F.3d at 202.

The motion for DNA testing concerned a bag that allegedly contained

cocaine base; Fulton also sought discovery related to his motion. Fulton argues

that he satisfied the statutory prerequisites for DNA testing. He also contends

that the district court erred by denying his motion for DNA testing without

notifying the Government and giving it an opportunity to respond.

Under § 3600(a), the district court “shall order” DNA testing of specified

evidence if it determines that 10 listed prerequisites are met. Our review shows

that the prerequisites plainly were not satisfied in this matter: The identity of

the perpetrator was not at issue at trial, and the motion for DNA testing was not

made in a timely fashion. See § 3600(a)(7), (10). As Fulton suffered no prejudice

from the district court’s denial of the motion without notifying the Government,

any error under § 3600(b) was harmless. Because there was no reversible error

in the denial of the motion for DNA testing and discovery, the district court’s

judgment is in this regard affirmed.

Fulton contends that the district court erred by imposing restrictions on

his future filings without affording him an opportunity to be heard. He argues

that the restrictions should be vacated and the matter remanded for a hearing.

The authority of a court to enjoin future filings “flows not only from

various statutes and rules relating to sanctions, but the inherent power of the

court to protect its jurisdiction and judgments and to control its docket.” 

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Farguson v. MBank Houston, N.A., 808 F.2d 358, 360 (5th Cir. 1986) (footnote

omitted). The district court is permitted to act sua sponte in imposing

restrictions on future filings. Qureshi v. United States, 600 F.3d 523, 526 (5th

Cir. 2010). “[O]ur precedent governing the imposition of pre-filing injunctions

on vexatious litigants states unequivocally that notice and a hearing are

required if the district court sua sponte imposes a pre-filing injunction.” Id.

(internal quotation marks, citations, and brackets omitted). 

Although the district court had previously warned Fulton, prior to the

filing of the motion for DNA testing, that a future frivolous filing would result

in sanctions, including a bar to future filings, it failed to provide an opportunity

for a hearing in this matter. Accordingly, and regardless of the merits of the prefiling injunction, as to which we express no opinion, we must vacate the

injunction and remand “for the limited purpose of determining the sanctions

question after proper notice and a hearing consistent with the law of this

Circuit.” Id. at 527. 

In view of the foregoing, Fulton’s IFP motion is granted. His motion for

supplemental briefing is denied. 

IFP GRANTED; MOTION FOR SUPPLEMENTAL BRIEFING DENIED;

DENIAL OF MOTION FOR DNA TESTING AFFIRMED; PRE-FILING

INJUNCTION VACATED AND REMANDED TO DETERMINE THE

SANCTIONS QUESTION AFTER PROPER NOTICE AND A HEARING.

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