### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60758 Summary Calendar

RICKY LEVERT FRANKLIN, Plaintiff–Appellant,

versus HINDS COUNTY SHERIFF DEPARTMENT; REBECCA PITTMAN, Sheriff Investigator; JAMIE K. MCBRIDE, Assistant District Attorney, Defendants–Appellees.

Appeal from the United States District Court f or the Southern District of Mississippi

No. 3:12-CV-423

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Ricky Frankli n , Mi s s i s s ip p i p risoner # 101951, appeals the dismissal of his third 4 2 U.S.C. § 1 9 8 3 action alleging constitutional violations resulting from his arrest and prosecution f or aggravated assault, sexual battery, rape, and kidnapU n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May3, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

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. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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ing, with all charges arising from the same incident. Franklin was convicted of aggravated assault and kidnaping and was acquitted on the s e x u a l battery charge; the j ury hung o n the rape charge. The thrust of Franklin’s argument is that there was insufficient evidence to c harge a n d p r o s e cute him for r ape and sexual battery and that that is evidenced by h is acquittal on the sexual battery charge and b y the hung jury on the rape charge. Given the slanderous nature of such charges, he avers, h i s Fourth and Fourteenth Amendment rights were violated. Franklin previousl y sued Hinds County Sheriff’s Investigator Pittman, Assistant District Att o r n e y M cBride, the Hinds County Sheriff, and Hinds County District Attorney Robert Smith in two § 1983 actions arising from the aforementioned i ncident. His claims were either d enied o r dismissed b ased on qualified immunity, prosecutorial immunity, or Heck v. Humphrey , 512 U.S. 477 (1994), and as c onclusional, frivolous, or repetitive. He seeks to re l i t i g a t e the claims in the instant § 1983 action. The doctrine of r es judicata bars the r e-litigation of claims that either have been litigated or should have been raised in an earlier suit. St. P aul Mercury Ins. C o. v. Williamson , 224 F .3d 425, 436 (5th Cir. 2000). For true r es judicata to apply, four elements must be satisfied: (1) The parties in the lawsuits must be e it h e r identical or in privity with one another; (2) the j udgment must have been rendered by a court of competent jurisdiction; (3) the action must have concluded with a final judgment on the merits; and (4) the same claim or cause of action must be involved in both suits. Southmark Corp. v. Coopers & Lybrand (In re Southmark Corp.) , 163 F.3d 925, 934 (5th Cir. 1999). Franklin’s claims against McBride, i n dividually, are barred by prosecutorial immunity; his claims a gainst Investigator Pittman, individually, are barred by qualified immunity; and his claims against the Sheriff’s Department, which

were actually against the county, failed to state a c onstitutional violation. Those claims either were or should have been raised in h is first or second § 1 983 action.
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See i d. Furthermore, Franklin does not address the district court’s f indings that McBride and P ittman are immune from suit or that th e sheriff’s d epartment is not a sep a r a t e l egal entity. Franklin has therefore abandoned a ny such arguments. See Yohey v. Collins , 985 F.2d 222, 224-25 (5th Cir. 1993). As for the claims against Hinds County, wh i ch include those against Pittman and McBride in their official c apacities, see K entucky v . G raham , 473 U.S. 159, 165–66 (1985), there i s no dispute r egarding the first three prongs of the res judicata test. As for the f ourth, this court determines whether two suits involve the same claim or c a u s e of action by applying a “transactional test.” United States v . Davenport , 484 F .3d 321, 326 (5th Cir. 2007). Und e r t h a t t e s t, the inquiry focuses on whether the two cases under consideration are based on the

same nucleus o f operat i v e f a cts. Id. If so, the judgment’s p reclusive effect extends to all rights the original plaintiff had with respect to all or any part of the transaction from which the original suit arose. Id. Franklin’s claims satisfy that test, because they all s tem f rom his arrest and prosecution f

or the referenced assault and kidnaping, so they are barred by

res judicata. The district c ourt did not err in so finding, and m ost importantly, Franklin does not argue otherwise. B e c a use the a ppeal does not raise an issue of arguable merit, it i s f r i v o lous, Howard v. King , 707 F.2d 215, 219–20 (5th C ir. 1983), a n d i s t h e refore DISMISSED, see 5 T H C I R

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. 4 2.2. This dismissal counts as Franklin’s third strike under 28 U.S.C. § 1 915(g). See A depegba v. Hammons , 103 F.3d 3 83, 385- 87 (5th Cir. 1996). In accordance with § 1915(g), Franklin i s barred from proceeding in forma pauperis in a ny civil action or appeal f iled while he is incarcerated or detained i n a ny f acility unless he “is under imminent danger of serious physical i nj ury.” § 1915(g). We warn Franklin that any additional f rivolous appeals will i nvite sanctions. Franklin is further c autioned to review any pending appeals to ensure that they do not raise arguments that are frivolous.

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