Terry Davis, Jr. v. Clerk of Court Acadia Parish , 637 F. App'x 854 ( 2016 )

Case: 15-30303 Document: 00513411110 Page: 1 Date Filed: 03/08/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30303
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 8, 2016
TERRY DAVIS, JR.,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
CLERK OF COURT ACADIA PARISH,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:14-CV-3166
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Terry Davis, Jr., Louisiana prisoner # 345635, filed a civil rights
complaint under 42 U.S.C. § 1983 in which he asserted that he had a right to
inspect state court files pertaining to his conviction. Davis’s district court
submissions indicated that he is serving a 10-year sentence based on his guilty
plea to a charge of aggravated burglary, but he maintained that his plea
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-30303 Document: 00513411110 Page: 2 Date Filed: 03/08/2016
No. 15-30303
agreement called for him to serve only seven years of imprisonment. The
district court dismissed the complaint as frivolous.
On appeal, Davis challenges the sentence imposed on his aggravated
burglary conviction. He again asserts that he pleaded guilty pursuant to an
agreement that called for him to receive a seven-year sentence of
imprisonment. He claims that his trial counsel was ineffective with respect to
the plea bargain. Davis requests (1) a release from prison and (2) the award of
monetary damages of $100 per day because he is allegedly serving more time
than he agreed to serve.
A § 1983 suit may not be used to challenge the fact or duration of
confinement; such a claim is cognizable only in habeas, because only a habeas
action may be used to secure accelerated or immediate release. Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973). In view of the foregoing, to the extent
that Davis’s complaint challenged his conviction or sought an accelerated
release from prison, his claim is not cognizable in a civil rights action and was
properly dismissed. See id. Further, as Davis has not alleged that his
conviction or sentence has been invalidated, his claim for monetary damages
is frivolous. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Hamilton v.
Lyons, 74 F.3d 99, 103 (5th Cir. 1996).
Davis’s complaint asserted that he had the right to inspect files relating
to his arrest, prosecution and conviction. However, on appeal Davis makes
only a brief, one-sentence reference to this claim. Although pro se briefs are
afforded liberal construction, even pro se litigants must brief arguments in
order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Davis’s fleeting mention of the claim, without identifying any error in the
district court’s analysis, constitutes a failure to brief, and thus the claim is
2
Case: 15-30303 Document: 00513411110 Page: 3 Date Filed: 03/08/2016
No. 15-30303
considered abandoned. See Brinkman v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
Davis’s appeal is DISMISSED AS FRIVOLOUS. The district court’s
dismissal of the action and the dismissal of the instant appeal as frivolous
count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Davis is WARNED that if he accumulates
three strikes under § 1915(g) he will not be able to proceed 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. See
§ 1915(g).
3