Champluvier v. Riley , 308 F. App'x 840 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 30, 2009
No. 08-60407
Summary Calendar Charles R. Fulbruge III
Clerk
DEBORAH CHAMPLUVIER
Plaintiff-Appellant
v.
JAMES ALBERT RILEY, In His Individual Capacity
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:07-CV-105
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Deborah Champluvier moves for leave to proceed in forma pauperis (IFP)
on appeal from the district court’s summary judgment in favor of Sheriff James
Albert Riley dismissing Champluvier’s claims that Sheriff Riley wrongfully
arrested and incarcerated her in violation of her rights under the Fifth, Eighth,
and Fourteenth Amendments. The district court denied Champluvier’s request
to proceed IFP on appeal, certifying that the appeal was not taken in good faith.
Champluvier’s IFP motion is a challenge to the district court’s certification that
*
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should not be published and is not precedent except under the limited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.
No. 08-60407
her appeal is not taken in good faith. See Baugh v. Taylor,117 F.3d 197, 202 (5th
Cir. 1992).
Champluvier argues that the district court erred by granting summary
judgment in favor of Sheriff Riley. She argues that Sheriff Riley had no
authority to arrest and incarcerate her because there was no mandate from the
Mississippi Supreme Court and there was no court order signed by a judge
giving him this authority. Champluvier argues that the district court’s opinion
contained various factual errors which she argues are “disputed facts.” She
makes the following corrections: (1) the December 5, 2003, notice issued by the
clerk of the appeals court did not state that her conviction had been affirmed;
(2) her appearance bond was with the Mississippi Supreme Court, not the
appeals court; and (3) Sheriff Riley did not have authority to arrest and
incarcerate her because there was no mandate from the Mississippi Supreme
Court, no court order signed by a judge, and the Mississippi Supreme Court did
not revoke her appeal bond. Champluvier also argues that the district court
failed to hold a hearing and rule on her summary judgment motion.
Champluvier has not shown that the district court erred in granting
Sheriff Riley’s summary judgment motion. Champluvier fails to set out any
specific disputed fact concerning Sheriff Riley’s liability. Such “conclusory
allegations” are insufficient to defeat summary judgment. See Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In accordance with MISS.
R. APP. PROC. 39(a), the clerk of the Mississippi appeals court, by authority of the
appeals court, issued a notice setting a date for rendition of its judgment and
notifying Sheriff Riley and Champluvier that she was required to surrender on
that date to the sheriff of the county in which she was convicted. The notice
provided that Champluvier’s failure to appear would result in a judgment
against her and the sureties on her bail bond. The notice further provided that
Champluvier “shall not be released on bail after [her] conviction has been
affirmed by this Court, except by further Order of this Court.” Rule 39 expressly
2
No. 08-60407
provides that “[b]ail shall not be allowed after affirmance in the appellate court,
except as provided in Rule 41.” The exception in MISS. R. APP. PROC. 41,
governing the stay of the mandate and release pending an application for writ
of certiorari to the United States Supreme Court, was inapplicable to
Champluvier’s case. Thus, Champluvier was not entitled to obtain bail after her
conviction was affirmed under either Rule 39(a) or Rule 41. Further, the appeals
court denied her petition for release pending her petition for discretionary
review to the Mississippi Supreme Court.
Champluvier has not shown that Sheriff Riley wrongfully arrested and
incarcerated her in violation of her rights under Mississippi state law or the
United States Constitution. See Young v. Hubbard, 673 F.2d 132, 134 (5th Cir.
1982) (holding that there is no “absolute federal constitutional right” to bail
pending appeal; however, once a state makes provisions for such bail, it may not
deny it arbitrarily or unreasonably). Contrary to Champluvier’s argument, the
district court ruled on her summary judgment motion in its final judgment when
it dismissed any pending motions as moot. Further, Champluvier has not shown
that a hearing was necessary for the resolution of the case.
Champluvier has not shown that she will raise a nonfrivolous issue on
appeal. See Baugh, 117 F.3d at 202; Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Accordingly, Champluvier’s IFP motion is denied, and the appeal is
dismissed as frivolous. See Howard, 707 F.2d at 220; 5TH CIR. R. 42.2.
MOTION DENIED; APPEAL DISMISSED.
3