Damien Ford v. John Doe , 710 F. App'x 642 ( 2018 )

Case: 17-30216 Document: 00514340755 Page: 1 Date Filed: 02/07/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-30216
Fifth Circuit
FILED
February 7, 2018
DAMIEN FORD, Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
JOHN DOE, Editor in Chief/Senior Editor; JANE DOE; K T B S,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 5:16-CV-1608
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
Damien Ford, Arkansas prisoner # 143035, moves for leave to proceed in
forma pauperis (IFP) in his appeal of district court’s dismissal of his suit as
untimely with respect to his state law claims and for failure to state a claim
under 42 U.S.C. § 1983 on which relief could be granted. His motion to file a
supplemental brief is GRANTED. By filing his motion to proceed IFP, Ford
challenges the district court’s certification that his appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-30216 Document: 00514340755 Page: 2 Date Filed: 02/07/2018
No. 17-30216
inquiry into a litigant’s good faith “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).” Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and
citation omitted).
Ford has not shown that he has a nonfrivolous appellate claim. He does
not address the district court’s conclusion that his § 1983 claims failed because
he did not name state actors as defendants. He has thus waived any challenge
he may have had to this determination. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
For Ford’s state law claims, we look to state law governing limitations.
See Cruz v. Louisiana ex rel. Dep’t of Pub. Safety and Corr., 528 F.3d 375, 378
(5th Cir. 2008); Fluor Eng’rs & Constructors v. So. Pac. Transp. Co., 753 F.2d
444, 448 (5th Cir. 1985). Ford’s argument that his state law claims should be
considered timely because he filed suit soon after he obtained a copy of the
article is unavailing because he has not alleged fraud, see Kassees v. Satterfield,
303 S.W.3d 42, 45 (Ark. 2009), nor has he shown that he acted reasonably, see
Alexander v. La. State Board of Private Investigator Examiners, 211 So. 2d 544,
562 (La. Ct. App.) , cert. denied, 221 So. 3d 855 (La. 2017). Because Ford has
not shown that the district court erred in certifying that his appeal was not
taken in good faith, his IFP motion is DENIED, and the appeal is DISMISSED
AS FRIVOLOUS. See Baugh, 117 F.3d at 202; 5th Cir. R. 42.2. His motion to
correct is likewise DENIED.
This dismissal and the district court’s dismissal each count as a “strike”
under 28 U.S.C. § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761-64
(2015); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Ford has
another strike in Ford v. Ward, No. 5:16-cv-340, 2016 WL 6476947 (E.D. Ark.
Oct. 31, 2016). As he has now accumulated three strikes, Ford is BARRED
2
Case: 17-30216 Document: 00514340755 Page: 3 Date Filed: 02/07/2018
No. 17-30216
from proceeding IFP 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