Clinton Johns v. Loren Jackson ( 2012 )

Case: 12-10195 Document: 00512061421 Page: 1 Date Filed: 11/21/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 21, 2012
No. 12-10195
Summary Calendar Lyle W. Cayce
Clerk
CLINTON JOHNS; JAMES GREEN, JR.,
Plaintiffs-Appellants
v.
LOREN JACKSON; BRENDA MCNEIL,
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 5:11-MC-6
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Clinton Johns, Texas prisoner # 764814, and James Green, Jr., Texas
prisoner # 742401, move individually for leave to proceed in forma pauperis
(IFP) on appeal from the district court’s closure of their case based upon a want
of jurisdiction. Johns and Green collectively argue that the district court erred
in finding that it did not have admiralty jurisdiction over the claims raised in
their complaint, that the district court erred in finding that venue for their
action was not proper in the Northern District of Texas, that the district court
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10195 Document: 00512061421 Page: 2 Date Filed: 11/21/2012
No. 12-10195
erred in failing to issue summonses to the defendants, and that their claims
were not frivolous.
By moving for leave to proceed IFP on appeal, Johns and Green are
challenging the district court’s certification that their appeal is not taken in good
faith. See 28 U.S.C. § 1915(a)(3); Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Our inquiry into their 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). If we uphold the district
court’s certification that the appeal is not taken in good faith, the appellants
must pay the filing fee or, alternatively, we may dismiss the appeal sua sponte
under 5th Circuit Rule 42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.2; 5TH
CIR. R. 42.2.
Johns’s and Green’s complaint invoked the district court’s admiralty and
maritime jurisdiction over their claims against the defendants for the
defendants’ alleged mishandling of their state habeas filings. The district court
found their claims to jurisdiction were frivolous and closed the case for want of
jurisdiction.
Johns and Green have not demonstrated that they will raise a nonfrivolous
issue on appeal concerning the district court’s finding of a want of jurisdiction.
As Johns and Green have not demonstrated that they will raise a nonfrivolous
issue concerning the district court’s finding of a want of jurisdiction, we need not
address their remaining arguments concerning proper venue for the matter or
the propriety of any summons issued in the matter. The appeal lacks arguable
merit and is therefore frivolous. See Howard, 707 F.2d at 220. Johns’s and
Green’s motions for leave to proceed IFP on appeal are DENIED, and their
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.
R. 42.2.
Our dismissal of this appeal as frivolous counts as a strike under
§ 1915(g). See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
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No. 12-10195
1996). Johns and Green are warned that if either one of them individually
accumulates three strikes, he will not be allowed to proceed IFP in any civil
action or appeal unless he is under imminent danger of serious physical injury.
See § 1915(g).
IFP MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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