Towns v. Sheriffs Department Jackson Parish , 710 F. App'x 227 ( 2018 )

Case: 17-30399 Document: 00514328835 Page: 1 Date Filed: 01/30/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-30399
Fifth Circuit
FILED
January 30, 2018
AKENSHAI TOWNS, Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
SHERIFFS DEPARTMENT JACKSON PARISH; WARDEN JACKSON
PARISH CORRECTIONAL COMPLEX; KAYNE PULLING; TIM DUCOTE,
Parish Prison Warden; ANDY BROWN, Jackson Parish Sheriff; CITY OF
JONESBORO; PARISH OF JACKSON,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:17-CV-269
Before DAVIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Akenshai Towns moves this court for leave to proceed in forma pauperis
(IFP) on appeal in regard to his challenge to the district court’s dismissal of his
42 U.S.C. § 1983 suit as frivolous and for failure to state a claim under 28
U.S.C. § 1915(e)(2)(B)(i) and (ii). He also has filed a motion for the
appointment of counsel. According to Towns, his complaint shows that the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-30399 Document: 00514328835 Page: 2 Date Filed: 01/30/2018
No. 17-30399
defendants improperly deprived him of his right to an extradition hearing and
counsel during extradition. Towns also argues, for the first time on appeal,
that he wrongfully was denied the opportunity to file an amended complaint.
To obtain IFP status here, Towns must show both that he is financially
eligible and that he will present a nonfrivolous issue for appeal. See Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982). Towns, however, does not meet that
standard. Even if Towns is correct that Heck v. Humphrey, 512 U.S. 477
(1994), is inapplicable to his case, he indisputably failed to state a claim. Cf.
United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir. 2009) (explaining that
this court “may affirm for any reason supported by the record, even if not relied
on by the district court”). Even liberally construed, nothing in Towns’s
allegations suggests a claim that he was denied his right to file a habeas corpus
challenge to his extradition while he was in Louisiana. See Good v. Allain, 823
F.2d 64, 67 (5th Cir. 1987); Crumley v. Snead, 620 F.2d 481, 483 (5th Cir. 1980);
see also 18 U.S.C. § 3182.
Likewise, Towns has not shown the nonfrivolity of his claim that state
officials should have provided him with an attorney, pursuant to his Sixth
Amendment right to counsel. See McDonald v. Burrows, 731 F.2d 294, 297
(5th Cir. 1984). Finally, as for Towns’s claim that the district court did not
give him an opportunity to amend his complaint, he is deemed to have waived
the issue, which he did not raise in his objections to the magistrate judge’s
report. See Jennings v. Owens, 602 F.3d 652, 657 n.7 (5th Cir. 2010). Even if
we were to consider the issue, the claim does not show prejudice because his
amended complaint did not materially change the factual allegations of the
initial complaint.
Accordingly, Towns’s motion for leave to proceed IFP is DENIED, and
his motion for appointment of counsel is DENIED. We further DISMISS his
2
Case: 17-30399 Document: 00514328835 Page: 3 Date Filed: 01/30/2018
No. 17-30399
appeal sua sponte. See Baugh v. Taylor, 117 F.3d 197, 202 & n. 24 (5th Cir.
1997); 5TH CIR. R. 42.2.
This dismissal and the district court’s dismissal each count as a strike
under § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761-64 (2015);
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Towns is hereby
WARNED that if he accumulates three strikes, he will not be allowed to
proceed in forma pauperis in any civil action or appeal unless he is under
imminent danger of serious physical injury. See § 1915(g).
3