David Adams v. George Schmidt , 612 F. App'x 781 ( 2015 )

Case: 14-60743 Document: 00513154841 Page: 1 Date Filed: 08/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 14, 2015
No. 14-60743
Lyle W. Cayce
Clerk
DAVID ADAMS,
Plaintiff-Appellant
v.
GEORGE W. SCHMIDT,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:14-CV-59
Before CLEMENT, ELROD and SOUTHWICK, Circuit Judges.
PER CURIAM: *
David Adams, Mississippi prisoner # T1812, moves for leave to proceed
in forma pauperis (IFP) on appeal from the dismissal of his civil rights
complaint brought pursuant to 31 U.S.C. § 3723 and 42 U.S.C. §§ 1983 and
1985. The district court denied his IFP motion and certified that the appeal
was not taken in good faith.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60743
A district court may deny a motion for leave to appeal IFP by certifying
that the appeal is not taken in good faith and providing written reasons for the
certification. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3); FED. R. APP. P. 24(a)(3). When a district court makes such a
certification under § 1915(a)(3) and Rule 24(a)(3), the appellant may either pay
the filing fee or challenge the certification decision. Baugh, 117 F.3d at 202.
Adams’s motion to proceed IFP on appeal is construed as a challenge to the
district court’s certification decision. See id.
Adams alleged that George Schmidt agreed to represent him pro bono in
post-conviction proceedings and that a few months after Adams sent his
criminal files to Schmidt, Schmidt quit communicating with him and refused
to return his files, preventing him from obtaining another attorney. Adams
filed an ethics complaint against Schmidt with the Mississippi Bar association,
who found that Schmidt had not violated any ethical rules. Adams then filed
this suit against Schmidt, alleging that Schmidt, the bar association, and two
bar association officials conspired to deprive him of his files and access to the
courts on account of the nature of his capital rape conviction.
The district court dismissed Adams’s § 3723 claim as legally frivolous
because Schmidt and the bar association officials were not employees of the
United States Government and because the bar association is not a federal
agency. By failing to sufficiently brief the issue, Adams has abandoned any
challenge to the dismissal of this claim. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
As for the district court’s dismissal of Adams’s § 1985 claim as frivolous,
our review of the record and Adams’s brief on appeal reveals no abuse of
discretion. See Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013). The
district court concluded that it was frivolous because the facts Adams alleged
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No. 14-60743
“failed to show any type of discriminatory animus.” Adams alleged that
Schmidt’s discrimination was based on his capital rape conviction, but he failed
to allege any facts to indicate that Schmidt’s conduct was motivated by a
purpose directed specifically at convicted capital rapists as a class. See Griffin
v. Breckenridge, 403 U.S. 88, 102-03 (1971) (requiring that “some racial, or
perhaps otherwise class-based, invidiously discriminatory animus [lay] behind
the conspirators’ action”). Indeed, Adams alleged facts that flatly contradicted
his contention that he was discriminated against on the basis of his conviction
and that instead indicated that Schmidt was willing to represent him upon
receipt of a retainer fee.
As for the district court’s dismissal of Adams’s § 1983 action for failure
to state a claim, Adams has failed to meaningfully challenge the grounds
supporting the district court’s dismissal of his § 1983 claim against the
Mississippi Bar and the bar association officials; we therefore review only
whether he stated a claim against Schmidt. See Yohey, 985 F.2d at 224-25.
Section 1983 provides a remedy for the deprivation of a constitutional
right by a state actor or someone acting under color of state law. Lugar v.
Edmondson Oil Co., 457 U.S. 922, 929 (1982). Adams alleged that Schmidt, as
an attorney providing pro bono representation, “was acting in his official
capacity as a lawyer for Mississippi and the United States.” Accepting Adams’s
allegations as true, the factual allegations do not “plausibly suggest an
entitlement to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). An
attorney is not acting under color of state law when representing a client. See
Polk Cnty. v. Dodson, 454 U.S. 312, 317-18 (1981). Although private attorneys
who have conspired with state officials may be held liable under § 1983, Adams
did not allege any facts to indicate that there was an agreement between the
defendants to support a conspiracy. See Tebo v. Tebo, 550 F.3d 492, 496 (5th
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Cir. 2008). To the extent his allegations can be construed as asserting that
Schmidt was acting under color of federal law, it is well-settled that federal
officials “are not subject to suit under § 1983.” Broadway v. Block, 694 F.2d
979, 981 (5th Cir. 1982).
Finally, Adams complains that the district court erred by failing, prior
to dismissal, to conduct a hearing pursuant to Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985). Adams has not described facts that would have been
revealed through a Spears hearing that would have salvaged his otherwise
deficient complaint and, therefore, has not shown that the district court abused
its discretion. See Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010).
Adams has failed to show that the district court’s certification that the
appeal was not taken in good faith was incorrect. See Baugh, 117 F.3d at 202.
The instant appeal is without arguable merit and is thus frivolous.
Accordingly, Adams’s IFP motion is denied, and his appeal is dismissed as
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR.
R. 42.2.
The dismissal of this appeal as frivolous counts as a strike for purposes
of § 1915(g), as does the district court’s dismissal. See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996). Adams is cautioned that if he
accumulates three strikes under § 1915(g), he will not be able to proceed 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).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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