Webb v. County of Coryell ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50283
Summary Calendar
BARBARA JO WEBB,
Plaintiff-Appellant,
versus
THE COUNTY OF CORYELL; SANDY GATELY, as former District Attorney
for the County of Coryell in her individual and official
capacity and present District Attorney unknown, individually
and official capacity; GINA DEBOTTIS, Individually and
official capacity as an official of the County of Coryell;
JOHN DOE, an individual whose name unknown to plaintiff
individually and in his capacity as an official of the
County Director Administrative over Grand Jury Selective;
JANE DOE, an individual whose name unknown to plaintiff
individually and in her capacity as an official of the
County of Coryell, Registrator of Account Department; GERALD
KITCHEN, as former Sheriff, Individually and in his capacity
as Sheriff of Coryell County; LINDA MOTEN, Individually and
as Grand Jury Foreman for the 1994 term for the County of
Coryell; GERALD GOODWIN, individually and in his capacity as
an official of the Coryell Sheriff Investigation Division of
Coryell County; TEXAS BOARD OF PARDONS & PAROLES; GARY L.
JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, in his executive office individually
and as director; JOHN MONRARTY, Director Office of Inspector
General, individually and as Director of Investigation
Agency in his individual and official capacity; INMATE TRUST
FUND, a department of the Texas Department of Criminal
Justice - Institutional Division and State of Texas; INMATE
LEGAL SERVICE DEPARTMENT, an office or department of Texas
Department of Criminal Justice - Institutional Division;
SHERRY NANCE, Warden, individually and official capacity as
a officer department head of unit in Texas Department of
Criminal Justice - Institutional Division; LINDA AMENT,
Warden, individually and official capacity as officer
department head of Unit in Texas Department of Criminal
Justice - Institutional Division; UNKNOWN MOYA, Warden,
individually and official capacity as officer department head of
Lane Murray unit; Division of Texas Department of Criminal
Justice - Institutional Division; UNKNOWN BLANCHARD, Sub Counsel
of Lane Murray; individually and official capacity; CLARK,
Captain, in her individually and official capacity as
disciplinary captain of Lane Murray Unit Texas Department of
Criminal Justice - Institutional Division; BATCHELOR, Lieutenant,
in his individual and official capacity as Lieutenant at Lane
Murray Unit, a Division of Texas Department of Criminal Justice -
Institutional Division; FNU HOPKINS, Correctional Officer 3,
individual and official capacity as kitchen stewart at Mount
Viewe Unit, Texas Department of Criminal Justice - Institutional
Division; DIRECTOR UNIVERSITY OF TEXAS MEDICAL BRANCH, in his
authority individually and official capacity of Health Care
Service and Safety in authority to Texas Department of Criminal
Justice - Institutional Division; RISK MANAGEMENT DIRECTOR PEEVY,
Risk Management, Individually and official capacity as Division
Director for Safety Texas Department of Criminal Justice -
Institutional Division; UNKNOWN WILSON, Major, Former Major of
Lane Murray in his individual and official capacity in authority
of Texas Department of Criminal Justice - Institutional Division;
COUNTY OF WALKER CORRECTIONAL OFFICER; LINDA MADDEN, Attorney, in
her individual and official capacity as acting attorney for Texas
Department of Criminal Justice - Institutional Division Special
Prosecutor,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
(W-02-CV-5)
December 24, 2002
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Barbara Jo Webb, Texas prisoner # 335682, has filed a pro se
motion for leave to proceed in forma pauperis (IFP) on appeal. Her
42 U.S.C. § 1983 complaint was dismissed as frivolous, based on the
1
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.
2
collateral estoppel of her claims. And, the district court found
Webb was barred by 28 U.S.C. § 1915(g) from proceeding IFP. By
seeking IFP status, Webb is challenging the district court’s
certification that such status should not be granted on appeal
because her appeal is both frivolous and not taken in good faith.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Pursuant to the requisite liberal reading of the complaint,
the record does not support the district court’s determination that
Webb’s claims are collaterally estopped. Nor does it appear that
she had accumulated the three strikes necessary for application of
the § 1915(g) bar. Therefore, her motion to proceed IFP on appeal
is GRANTED.
The dismissal of Webb’s complaint can be affirmed, however,
on other grounds. See Bickford v. Int’l Speedway Corp., 654 F.2d
1028, 1031 (5th Cir. 1981). All of her claims stem from her
allegations that there was a widespread conspiracy by all of the
defendants to violate her civil rights and that it spanned from
December 1993 to April 2000. Because Webb’s conspiracy allegations
are wholly conclusional, they do not support an actionable claim.
See Babb v. Dorman, 33 F.3d 472, 476 (5th Cir. 1994). To the
extent that Webb has attempted to assert individual claims
regarding the violation of her constitutional rights, those claims
are abandoned because they have been inadequately briefed.
See FED. R. APP. P. 28(a)(9); see also Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).
3
This affirmance of the dismissal of Webb’s complaint as
frivolous counts as her third “strike” for purposes of § 1915(g).2
See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).
Webb may no longer proceed IFP in any civil action or appeal filed
while she is incarcerated or detained in any facility unless she is
under imminent danger of serious physical injury. See 28 U.S.C. §
1915(g).
IFP GRANTED; AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED
2
The dismissal of Webb v. Scott, Civil Action No. 6:97-CV-
242 (W.D. Tex. 1999), and Webb v. Parole Division/TDCJ, Civil
Action No. 6:99-CV-202 (W.D. Tex. 2000) as frivolous also count
as strikes.
4