Demarcus Chatmon v. City of La Marque, Texas, et a ( 2020 )

Case: 19-40106 Document: 00515558936 Page: 1 Date Filed: 09/10/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40106 September 10, 2020
Summary Calendar
Lyle W. Cayce
Clerk
Demarcus Chatmon,
Plaintiff—Appellant,
versus
City of La Marque, Texas; Richard Price; Mike Keleman;
Jose Santos; Taser International, Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:18-CV-163
Before Clement, Elrod, and Haynes, Circuit Judges.
Per Curiam:*
Demarcus Chatmon, Texas prisoner # 2277172, moves for leave to
proceed in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C.
§ 1983 complaint in which he alleged that he was beaten and denied medical
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-40106
attention by local police officers during a 2014 traffic stop. The district court
determined that the § 1983 complaint was barred by the applicable statute of
limitations and that Chatmon could not use this action to challenge the
dismissal of a prior § 1983 complaint. The district court further found that,
to the extent Chatmon’s action could be construed as requesting relief
pursuant to Federal Rule of Civil Procedure Rule 60, he was not entitled to
such relief. Resultingly, the district court dismissed the complaint as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
Chatmon’s motion for leave to file a supplemental brief is
GRANTED.
By moving to appeal IFP, Chatmon challenges 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). His IFP request “must be directed solely
to the trial court’s reasons for the certification decision,” id., and our inquiry
“is limited to whether the appeal involves legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation and citation omitted). We may dismiss the
appeal if it is apparent that it would be meritless. Baugh, 117 F.3d at 202 &
n.24; see 5th Cir. R. 42.2.
Chatmon does not challenge the district court’s determination that
his claims were time barred. Nor does he present any argument concerning
the district court’s conclusions that he could not use this action to appeal a
prior dismissal and that he was not entitled to relief under Federal Rule of
Civil Procedure 60. By failing to address the district court’s reason for
dismissal and certification, he has abandoned any issue crucial to his appeal
and IFP motion. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);
see also Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987). Chatmon’s contentions regarding the withholding of
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No. 19-40106
exculpatory evidence, insufficient evidence to support his plea, and the
suppression of certain unspecified evidence are all raised for the first time on
appeal and therefore will not be considered. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999).
Because Chatmon fails to show that his appeal involves any
nonfrivolous issue, his motion for leave to proceed IFP is DENIED, and this
appeal is DISMISSED AS FRIVOLOUS. See Howard, 707 F.2d at 220;
Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. His motion for leave to
file a supplemental brief is GRANTED, and his motion for the appointment
of counsel is DENIED. See Cooper v. Sheriff, Lubbock Cty., Tex., 929 F.2d
1078, 1084 (5th Cir. 1991).
The district court’s dismissal of Chatmon’s § 1983 complaint as
frivolous and our dismissal of this appeal as frivolous both count as strikes for
purposes of § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64
(2015); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996), abrogated in
part on other grounds by Coleman, 135 S. Ct. at 1762-63. Chatmon is
WARNED that if he accumulates three strikes, he will not be able to proceed
IFP in any civil action or appeal filed while he is incarcerated or detained in
any facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).
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