IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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

for the Southern District of Mississippi

No. 3:12-CV-423

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Ricky Franklin,Mississippi prisoner # 101951, appeals the dismissal of his

third 42 U.S.C. § 1983 action alleging constitutional violations resulting from his

arrest and prosecution for aggravated assault, sexual battery, rape, and kidnapUnited States Court of Appeals

Fifth Circuit

F I L E D

May 3, 2013

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. 12-60758

ing, with all charges arising from the same incident. Franklin was convicted of

aggravated assault and kidnaping and was acquitted on the sexual battery

charge; the jury hung on the rape charge. The thrust of Franklin’s argument is

that there was insufficient evidence to charge and prosecute him for rape and

sexual battery and that that is evidenced by his acquittal on the sexual battery

charge and by the hung jury on the rape charge. Given the slanderous nature

of such charges, he avers, his Fourth and Fourteenth Amendment rights were

violated. 

Franklin previously sued Hinds County Sheriff’s Investigator Pittman,

Assistant District Attorney McBride, the Hinds County Sheriff, and Hinds

County District Attorney Robert Smith in two § 1983 actions arising from the

aforementioned incident. His claims were either denied or dismissed based on

qualified immunity, prosecutorial immunity, or Heck v. Humphrey, 512 U.S. 477

(1994), and as conclusional, frivolous, or repetitive. He seeks to relitigate the

claims in the instant § 1983 action. 

The doctrine of res judicata bars the re-litigation of claims that either have

been litigated or should have been raised in an earlier suit. St. Paul Mercury

Ins. Co. v. Williamson, 224 F.3d 425, 436 (5th Cir. 2000). For true res judicata

to apply, four elements must be satisfied: (1) The parties in the lawsuits must

be either identical or in privity with one another; (2) the judgment 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, individually, are barred by prosecutorial immunity; his claims against 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 constitutional violation. Those

claims either were or should have been raised in his first or second § 1983 action. 

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See id. Furthermore, Franklin does not address the district court’s findings that

McBride and Pittman are immune from suit or that the sheriff’s department is

not a separate legal entity. Franklin has therefore abandoned any such arguments. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 

As for the claims against Hinds County, which include those against Pittman and McBride in their official capacities, see Kentucky v. Graham, 473 U.S.

159, 165–66 (1985), there is no dispute regarding the first three prongs of the res

judicata test. As for the fourth, this court determines whether two suits involve

the same claim or cause of action by applying a “transactional test.” United

States v. Davenport, 484 F.3d 321, 326 (5th Cir. 2007). Under that test, the

inquiry focuses on whether the two cases under consideration are based on the

same nucleus of operative facts. Id. If so, the judgment’s preclusive 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 stem from his arrest

and prosecution for the referenced assault and kidnaping, so they are barred by

res judicata. The district court did not err in so finding, and most importantly,

Franklin does not argue otherwise.

Because the appeal does not raise an issue of arguable merit, it is frivolous, Howard v. King, 707 F.2d 215, 219–20 (5th Cir. 1983), and is therefore

DISMISSED, see 5TH CIR. R. 42.2. This dismissal counts as Franklin’s third

strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-

87 (5th Cir. 1996). In accordance with § 1915(g), Franklin is barred from proceeding in forma pauperis 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.” § 1915(g). We warn Franklin that any additional frivolous

appeals will invite sanctions. Franklin is further cautioned to review any pending appeals to ensure that they do not raise arguments that are frivolous.

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