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James Durham v. Walmart, Incorporated ( 2019 )


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  •      Case: 18-11045    Document: 00515011128   Page: 1   Date Filed: 06/26/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11045                       FILED
June 26, 2019
Lyle W. Cayce
JAMES DURHAM,                                                       Clerk
Plaintiff-Appellant
v.
WALMART, INCORPORATED,
Defendant-Appellee
____________________
JAMES DURHAM,
Plaintiff-Appellant
v.
MACY’S, INCORPORATED,
Defendant-Appellee
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-368
USDC No. 4:18-CV-372
Case: 18-11045      Document: 00515011128         Page: 2    Date Filed: 06/26/2019
No. 18-11045
Before SOUTHWICK, HAYNES, and HO, Circuit Judges.
PER CURIAM: *
James Durham, whose Texas prisoner number is 02194861, moves for
leave to proceed in forma pauperis (IFP) to appeal the district court’s dismissal
of his 42 U.S.C. § 1983 complaints. Durham’s IFP motion is a challenge to the
district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
According to Durham, the defendants brought false theft charges against
him without evidence and used excessive force to detain him. To state a claim
under § 1983, a plaintiff must allege that there was a violation of a right
secured by the Constitution or laws of the United States and that the
deprivation was committed by a person acting under the color of state law. See
Sw. Bell Tel., LP v. City of Houston,
    529 F.3d 257
    , 260 (5th Cir. 2008). In
relevant part, the district court dismissed Durham’s complaints because the
defendants were not acting under color of state law. Durham’s pleadings fail
to show that he will present a nonfrivolous issue on appeal. See Howard v.
King,
    707 F.2d 215
    , 220 (5th Cir. 1983). Accordingly, we deny his motion for
leave to proceed IFP and dismiss the appeal as frivolous. See
    Baugh, 117 F.3d at 202 
    n.24; 5TH CIR. R. 42.2. His motion for the appointment of counsel also
is denied.
The dismissal of this appeal counts as one strike under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996).
Durham is cautioned that if he accumulates three strikes under § 1915(g), he
will not be able to proceed IFP in any civil action or appeal filed while he is
* 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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Case: 18-11045    Document: 00515011128        Page: 3   Date Filed: 06/26/2019
No. 18-11045
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
MOTION FOR LEAVE TO PROCEED IFP DENIED; MOTION FOR
APPOINTMENT          OF   COUNSEL             DENIED;   APPEAL       DISMISSED;
SANCTION WARNING ISSUED.
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