Terry James v. Dallas Police Department ( 2015 )

Case: 13-11208 Document: 00513091470 Page: 1 Date Filed: 06/24/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-11208
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 24, 2015
TERRY R. JAMES,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
SERGEANT PAUL SCHAFER; OFFICER PATRICIO E. ZAMARRIPA,
(#XO112); OFFICER JOHN W. ROBERTS, (#4337),
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CV-457
Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
Terry R. James moves for leave to proceed in forma pauperis (IFP) on
appeal. The district court denied James’s motion to appeal IFP and certified
that his appeal was not taken in good faith. By moving in this court for leave
to proceed IFP, James challenges the district court’s certification decision. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-11208
James argues that the district court erred in dismissing his complaint
and granting the defendants’ motion for summary judgment on their asserted
defense of qualified immunity. When qualified immunity is raised as a
defense, there is no liability for actions that do not “violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008) (internal quotation
marks and citation omitted). James contends that the defendants violated his
clearly established constitutional right to be free from unreasonable searches
and seizures when they arrested him inside of his house, without an arrest
warrant or probable cause.
“The Fourth Amendment . . . prohibits the police from making a
warrantless and nonconsensual entry into a suspect’s home in order to make a
routine felony arrest.” Payton v. New York, 445 U.S. 573, 576 (1980). James
does not contest that he invited the arresting officers, Roberts and Zamarripa,
into his home. Once lawfully inside, they could “take further action supported
by any consequent probable cause.” Georgia v. Randolph, 547 U.S. 103, 118
(2006). Further, James has not briefed and has thus waived any argument
challenging the district court’s determination that, under the independent
intermediary doctrine, the independent findings of the grand jury conclusively
established probable cause and shielded Roberts and Zamarripa from liability
for false arrest. See Morris v. Livingston, 739 F.3d 740, 752 (5th Cir.), cert.
denied, 134 S. Ct. 2734 (2014). Because James has not raised a genuine issue
of material fact regarding Roberts or Zamarripa causing him a constitutional
deprivation, his appeal of the summary judgment in their favor is frivolous.
See S.E.C. v. Recile, 10 F.3d 1093, 1095 (5th Cir. 1993).
By asserting no facts and making no argument regarding Schafer’s
liability, James has waived any challenge to the summary judgment in favor
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No. 13-11208
of Schafer. See Morris, 739 F.3d at 752. His appeal thereof is thus also
frivolous. See Atwood v. Union Carbide Corp., 847 F.2d 278, 279-81 (5th Cir.
1988).
James has failed to show that his appeal involves any arguably
meritorious issue. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, we DENY his motion and DISMISS his appeal as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
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