Nikita Goffney v. Martha Koomer ( 2016 )

Case: 15-20166 Document: 00513465748 Page: 1 Date Filed: 04/14/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20166
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 14, 2016
NIKITA VAN GOFFNEY,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
MARTHA D. KOOMER, Deputy Court Reporter; CASSANDRA MCCOY,
Deputy Court Reporter; MICHAEL T. SEILER, District Court Judge; BRET
LIGON, District Attorney; CYNTHIA S. PULCHER, Assistant District
Attorney; MICHAEL C. YOUNG, Assistant District Attorney; WILLIAM J.
DELMORE, III, Assistant District Attorney; LANE HAYGOOD, Assistant
District Attorney; MIKE ADUDDELL, Attorney at Law; JUAN SAUCEDA,
Detective for Conroe Police Department; CLYDE VOGEL, Police Officer;
TROY ROBERTS, Detective for Conroe Police Department; STEVE
MCKEITHEN, Chief Justice, 9th District Court of Appeals; CHARLES
KREGER, Justice of the 9th District Court of Appeals; HOLLIS HORTON,
Justice of the 9th District Court of Appeals; RICK PERRY, Governor for the
State of Texas; ERIC WAGNER, District Parole Officer II; G. SHOEMAKER,
Conroe Police Department,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CV-733
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
Case: 15-20166 Document: 00513465748 Page: 2 Date Filed: 04/14/2016
No. 15-20166
PER CURIAM: *
Nikita Van Goffney, Texas prisoner # 1582354, appeals the dismissal of
his 42 U.S.C. § 1983 complaint. He alleged that all the named defendants
engaged in a conspiracy to retaliate for a separate previously filed civil rights
complaint. He also alleged that the conspirators caused his conviction on drug
and weapons charges and altered the trial record to cover-up various misdeeds.
The district court screened the complaint pursuant to 28 U.S.C. § 1915(e) and
found that it was both time-barred and barred by Heck v. Humphrey, 512 U.S.
477, 486–87 (1994). It also denied Goffney’s motion to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e). On appeal,
Goffney argues that he is seeking the unedited version of the court reporter’s
record to prove the alteration of the trial record. He also argues that the Heck
bar should not apply where the underlying conviction was based on fraud.
The district court sua sponte found that Goffney’s complaint was
untimely. “In an action under section 1915, a district court may raise the
defense of limitations sua sponte.” Harris v. Hegmann, 198 F.3d 153, 156 (5th
Cir. 1999). We review the sua sponte dismissal of a complaint as time-barred
under Section 1915(e)(2) de novo. Id. Although federal courts borrow from the
forum state’s general personal-injury limitations period in a Section 1983
proceeding, federal law determines when a cause of action accrues. Pete v.
Metcalfe, 8 F.3d 214, 217 (5th Cir. 1993). A cause of action accrues “when the
plaintiff knows or has reason to know of the injury which is the basis of the
action.” Id. (quotations mark omitted).
* 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. 15-20166
Goffney’s brief acknowledges that one basis for the dismissal of his
complaint was the limitations period, but he does not address the district
court’s reasons or show that the district court erred. 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).
Goffney’s fleeting mention of the limitations issue, without identifying any
error in the district court’s analysis, constitutes a failure to brief and
abandonment of the issue. See Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Approximately two months after filing his brief, Goffney filed an
“Advisory to the Court.” In this pleading, he asserted various reasons why he
should be appointed counsel. He also argued that he had been unable to brief
the issues on appeal adequately. Goffney argued his Section 1983 complaint
was not barred by the statute of limitations. We liberally construe his
“Advisory” as including a motion to submit a supplemental brief. However,
supplemental briefs ordinarily are not allowed. See 5TH CIR. R. 28.4. Goffney
has not shown why the timeliness arguments raised in his “Advisory” could not
have been raised in his initial merits brief, especially given their similarity to
the arguments raised in his Rule 59(e) motion. Therefore, the motion we have
deemed as one for leave to file a supplemental brief is denied. Further, he has
not shown that his appeal involves exceptional circumstances. Thus, his
motion for appointment of counsel also is denied. See Cupit v. Jones, 835 F.2d
82, 86 (5th Cir. 1987).
Both the district court’s dismissal of the complaint for failure to state a
claim and our dismissal of this appeal count as strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir. 1996).
We caution Goffney that, if he accumulates three strikes, he will not be able to
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“bring a civil action or appeal a judgment in a civil action” in forma pauperis
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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