Nelson v. Smith County ( 2023 )

Case: 22-40730 Document: 00516679583 Page: 1 Date Filed: 03/16/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-40730 March 16, 2023
Summary Calendar
Lyle W. Cayce
____________
Clerk
Ka’Sandra Nelson, Individually and on behalf of her mentally ill son
Hubert Lake Jr. as next friend, an inmate in the Smith County Jail,
Plaintiff—Appellant,
versus
Smith County; Smith County Jail; The City of Tyler,
Texas; Jimmy Toler, Police Chief, Tyler Police Department; David
Hall, Sergeant, Tyler Police Department; Bradley Smith; Lance
Parks,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:21-CV-411
______________________________
Before Haynes, Engelhardt, and Douglas, Circuit Judges.
Per Curiam:*
Ka’Sandra Nelson filed a pro se complaint in which she asserted civil
rights claims as next friend on behalf of her mentally incompetent son,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40730 Document: 00516679583 Page: 2 Date Filed: 03/16/2023
No. 22-40730
Hubert Lake, Jr. This district court dismissed the action without prejudice.
Nelson has now filed a motion for authorization to proceed in forma pauperis
(IFP) on appeal, which constitutes a challenge to the district court’s
certification that any appeal would not be taken in good faith because Nelson
will not present a nonfrivolous appellate issue. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).
Most of Nelson’s brief is devoted to the merits of claims stemming
from events involving her son. She fails to raise any argument that challenges
the district court’s dispositive procedural determination that, as a pro se
litigant, she cannot maintain suit on behalf of her son, nor does Nelson
meaningfully dispute the district court’s implicit treatment of her complaint
as raising claims solely on her son’s behalf. Nelson has therefore abandoned
these issues. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
To the extent that Nelson merely lists or identifies issues, without
including any supporting arguments in the body of her brief, those issues are
considered abandoned. See Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.
1990). To the extent that Nelson has adequately briefed an argument
premised on the asserted failure of defendants Smith County and Smith
County Jail to timely respond to her civil action, and the refusal of the district
court to enter a default judgment because of the lack of a timely response, her
argument is not supported by the record, which demonstrates that these
defendants timely filed a Federal Rule of Civil Procedure 12(b)(6) motion,
which postposed the date for filing a responsive pleading. See Fed. R. Civ.
P. 12(a)(4)(A).
Finally, Nelson asserts that the district court may have been biased
against her because she is handicapped, indigent, and a member of a racial
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No. 22-40730
minority. Her conclusory assertions of bias are insufficient. See Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990). In any event, Nelson’s argument
is based on nothing more than the district court’s adverse rulings, which,
except in circumstances that are not present here, are insufficient to show
judicial bias. See Liteky v. United States, 510 U.S. 540, 555 (1994).
In view of the foregoing, Nelson fails to show that she will present a
nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Accordingly, Nelson’s motion to proceed IFP on appeal is DENIED,
and the appeal is DISMISSED. See 5th Cir. R. 42.2.
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