Philip Pohl v. Rick Thaler , 429 F. App'x 408 ( 2011 )

Case: 10-41160 Document: 00511514311 Page: 1 Date Filed: 06/20/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 20, 2011
No. 10-41160
Summary Calendar Lyle W. Cayce
Clerk
PHILIP J. POHL,
Plaintiff-Appellant
v.
RICK C. THALER; ELIZABETH E. COKER; TIMOTHY C. SIMMONS; KATHY
E. CLIFTON, Clerk; PATRICK DICKENS, Captain of Correctional Officers;
MARK W. DUFF; HAROLD C. HASTY; KENNETH E. HUTTO; RICHARD D.
MCKEE; LINDA S. MARTIN; CECIL E. MCCARTHY; OFILIA S. OLIVANY,
Administrative Assistant Mail Room Supervisor; CHARLES E. ROBERTS,
Subordinate of Harold Hasty and Timothy Simmons; WARREN WORTHY;
ALLEN ZOND,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:10-CV-77
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Philip J. Pohl, Texas prisoner # 408856, proceeding pro se, moves this
court for authorization to proceed in forma pauperis (IFP) in an appeal of the
district court’s judgment dismissing his 42 U.S.C. § 1983 complaint as frivolous
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-41160
and for failure to state a claim upon which relief may be granted. In his original
complaint, Pohl raised a plethora of claims against the defendants. In his brief
before this court, Pohl reasserts his claims against some of the named
defendants. He contends that he was denied blood pressure medication and
treatment by Allen Zond. He reasserts his contention that Kathy E. Clifton
mishandled his prison account by taking more money than allowed for court
filings. He further contends that Linda S. Martin blocked the prison grievance
procedure and that he was denied access to the courts. Pohl also argues that
Judge Elizabeth E. Coker ignored the “abuse of wards in her jurisdiction.” Pohl
further reasserts his allegation that his legal mail was opened outside his
presence and that “[t]he food issues are constitutional right to be treated
‘equally.’” He then concludes his brief by stating that “[m]ost other arguments
against dismissal are in the Objections to the Spears’ Hearing and Objections to
Magistrates Report and Recommendation.”
A district court may deny a motion for leave to appeal IFP by certifying
that the appeal is not taken in good faith and by providing written reasons for
the certification. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3); F ED. R. A PP. P. 24(a). The appellant may challenge the district
court’s certification decision by filing in this court a motion for leave to proceed
IFP. Baugh, 117 F.3d at 202; F ED. R. A PP. P. 24(a)(5). The motion, however,
“must be directed solely to the trial court’s reasons for the certification decision.”
Baugh, 117 F.3d at 202. By moving for leave to proceed IFP, Pohl is challenging
the district court’s certification the appeal is not taken in good faith. See id.Pohl’s generalized claims are conclusory and insufficient to establish a
constitutional violation. He does not challenge the district court’s determination
that the claims against Allen Zond are untimely and that those involving Judge
Elizabeth E. Coker are barred by the immunity doctrine. He further does not
sufficiently challenge the district court’s determination that the claims against
Kathy E. Clifton are subject to dismissal because the Texas court system
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No. 10-41160
provides an adequate state post-deprivation remedy. Also, Pohl still does not
show how he suffered any harm with regard to his access to court claims. His
attempt to incorporate by reference his objections filed in the district court is an
insufficient means of raising his arguments in this court. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). Even under a liberal interpretation, the
appellate brief is unsatisfactory. This court “will not raise and discuss legal
issues that [Pohl] has failed to assert.” Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Pohl’s failure to identify any
error in the district court’s legal analysis or the application of the law to the
lawsuit “is the same as if he had not appealed that judgment.” Id.Pohl has failed to show that his 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 citations omitted). His IFP motion
is therefore denied, and his appeal is dismissed. See Baugh, 117 F.3d at 202 &
n.24. Pohl is advised that the district court’s dismissal of his complaint and this
court’s dismissal of this appeal as frivolous count as two strikes for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Pohl has already accumulated two strikes under § 1915(g) in Pohl v.
Livingston, No. 06-40850 (5th Cir. July 10, 2007) (unpublished). Pohl has now
accumulated four strikes. Pohl is advised that he will no longer be allowed to
proceed IFP in any civil action or appeal filed while he is detained or
incarcerated in any facility unless he is under imminent danger of serious
physical injury. See § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) SANCTION
BAR IMPOSED.
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