Hale v. Harrison County Board of Supervisors ( 2015 )

Case: 15-60168 Document: 00513297782 Page: 1 Date Filed: 12/07/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60168 FILED
December 7, 2015
Lyle W. Cayce
JOHN HALE, Clerk
Plaintiff-Appellant
v.
HARRISON COUNTY BOARD OF SUPERVISORS; UNKNOWN
WASHINGTON, Ms. - Legal Assistant - In Official and Individual Capacity;
UNKNOWN COULTER; JOHN AND JANE DOES; UNKNOWN
SANDERSON, Warden; CAPTAIN UNKNOWN LEGE, Assistant Warden;
SHERIFF UNKNOWN BRISOLARA; A. JOHNSON, Deputy; UNKNOWN
WILSON, Deputy; SERGEANT UNKNOWN TARPLEY; SERGEANT
UNKNOWN FRENCH; NURSE TARA KUTSCHERENKO; JACLYN
SIMMONS MEYER; DR. JEFFERY KNIGHT,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:14-CV-61
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
John Hale, Mississippi prisoner # 24720, filed in the district court a
complaint seeking relief under 42 U.S.C. § 1983, the Americans with
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60168 Document: 00513297782 Page: 2 Date Filed: 12/07/2015
No. 15-60168
Disabilities Act, and a 1995 consent decree entered into by Harrison County,
Mississippi, and the United States regarding its administration of the
Harrison County Adult Detention Center. Hale seeks leave to proceed in forma
pauperis (IFP) on this interlocutory appeal from the district court’s orders
denying his petition for contempt proceedings as to the consent decree, motion
for enforcement of the consent decree, and motion for the appointment of
counsel. 1 By seeking leave to proceed IFP in this court, Hale is challenging the
district court’s certification that this appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
“This Court must examine the basis of its jurisdiction, on its own motion,
if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). We lack
jurisdiction to review the district court’s order denying Hale’s petition for a
contempt order, denying Hale’s motion for enforcement of the consent decree,
and dismissing Hale’s claims to the extent they raised claims based on
violations of the consent decree. The order is not a final judgment for purposes
of 28 U.S.C. § 1291; may be effectively reviewed on appeal from a final
judgment and thus is not appealable under the collateral order doctrine; and
was not certified by the district court under Federal Rule of Civil Procedure
54(b) or § 1292(b) as a final appealable order. See United States v. Powell, 468
F.3d 862, 863 (5th Cir. 2006); Dardar v. Lafourche Realty Co., 849 F.2d 955,
957 (5th Cir. 1988). Nor is the order, in which the court declined to enforce a
previously existing consent decree, appealable under § 1292(a). Cf. Ingram
Towing Co. v. Adnac Inc., 59 F.3d 513, 516 (5th Cir. 1995) (holding that
1 The district court also denied Hale’s motions for emergency injunctive relief against
defendant Coulter, a ruling on his request for injunctive relief, a temporary restraining order
(TRO), and a ruling on the TRO. However, Hale has abandoned any challenge he might have
raised regarding the denial of those motions by failing to challenge the decisions on appeal.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
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No. 15-60168
interlocutory appeals are not allowed when a court merely enforces or
interprets a previous injunction).
We have jurisdiction to consider Hale’s challenge to the district court’s
denial of his motion for the appointment of counsel. See Robbins v. Maggio,
750 F.2d 405, 413 (5th Cir. 1985). However, the district court did not abuse its
discretion in denying that request because Hale’s case involves no exceptional
circumstances that warrant the appointment of counsel. Hale raises no
complex legal or factual issues, and his pleadings indicate that he had the
ability to investigate and present his case adequately. See Ulmer v. Chancellor,
691 F.2d 209, 212 (5th Cir. 1982).
Hale has not shown that he will present a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion
for leave to proceed IFP is DENIED, and the appeal is DISMISSED in part for
lack of jurisdiction and in part 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 for purposes
of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996); see also Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). Hale is
cautioned that if he accumulates three strikes, he will no longer be allowed to
proceed IFP in any civil action or appeal filed while he is detained in any
facility unless he is in imminent danger of serious physical injury.
See § 1915(g).
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
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