Terrance Coler v. Kemp ( 2015 )

Case: 14-10489 Document: 00513005350 Page: 1 Date Filed: 04/14/2015
REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-10489 April 10, 2015
Lyle W. Cayce
Clerk
TERRANCE T. COLER,
Plaintiff−Appellant,
versus
JUDGE KEMP; VICKY RICE, Defense Counsel; DR. PITTMAN,
Defendants−Appellees.
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CV-237
Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Terrance Coler, Dallas County prisoner #13078686, moves for leave to
proceed in forma pauperis (“IFP”) in this appeal of the dismissal of his
42 U.S.C. § 1983 action as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b). By moving to proceed IFP, Coler is challenging the district 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-10489
certification that the appeal was not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into good faith “is limited to
whether the appeal involves legal points arguable on their merits (and there-
fore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted).
Coler claims that the judge and clerk tampered with his legal mail and
conspired to violate his due-process rights and that the judge denied his right
to appeal. He further contends that he submitted a motion for a change of
venue, that the clerk did not file the motion, and that a change of venue is
necessary for him to receive justice.
If the district court determines that an appeal is frivolous, it may certify
that it is not taken in good faith. See Baugh, 117 F.3d at 202; FED. R. APP.
P. 24(a). By making that certification, the court determined that Coler should
not be allowed to proceed IFP on appeal, but the court did not deny Coler the
right to appeal. See Baugh, 117 F.3d at 199−200; see Rule 24(a).
Coler does not identify any error in the district court’s determination
that his claims were conclusional, that Judge Kemp and Dr. Pittman were
entitled to absolute immunity, and that Rice could not be held liable under
§ 1983 because Coler did not show that she acted under color of state law.
Therefore, Coler has abandoned those issues on appeal by failing to brief them
adequately. See Yohey v. Collins, 985 F.2d 222, 224−25 (5th Cir. 1993); FED.
R. APP. P. 28(a); see also Brinkmann v. Dallas Cnty. Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
Nonetheless, the district court did not err in determining that Judge
Kemp and Dr. Pittman are entitled to absolute judicial immunity. See Boyd v.
Biggers, 31 F.3d 279, 284−85 (5th Cir. 1994); see also Williams v. Consovoy,
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No. 14-10489
453 F.3d 173, 178 (3d Cir. 2006); Morstad v. Dep’t of Corr. & Rehab., 147 F.3d
741, 744 (8th Cir. 1998). The court also did not err in determining that Rice
could not be held liable under § 1983 because Coler did not show that she acted
under color of state law. See Mills v. Criminal Dist. Court No. 3, 837 F.2d 677,
679 (5th Cir. 1988).
Coler has not shown that he will raise a nonfrivolous issue on appeal.
Therefore, the motion for leave to proceed IFP is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
The district court’s dismissal of the § 1983 complaint and the dismissal
of this appeal count as two strikes under § 1915(e). See Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996). The district court previously dismissed two
of Coler’s civil actions with prejudice as frivolous pursuant to §§ 1915(e) and
1915A. See Coler v. Dallas Cnty. Sheriff’s Dep’t, No. 3:14-CV-1819 (N.D. Tex.
Oct. 7, 2014); Coler v. Hoff, No. 3:14-CV-236 (N.D. Tex. Apr. 21, 2014). Because
Coler did not appeal those judgments, each counts as a strike against him
under § 1915(e). See Adepegba, 103 F.3d at 388. Coler has now accumulated
at least three strikes and therefore may not proceed IFP in any civil action or
appeal filed while incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
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