Terry Miles v. Horatio Aldredge ( 2020 )

Case: 19-50540 Document: 00515326880 Page: 1 Date Filed: 02/28/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50540
FILED
February 28, 2020
Lyle W. Cayce
TERRY ALLEN MILES, Clerk
Plaintiff-Appellant
v.
HORATIO R. ALDREDGE, Federal Public Defender’s Office; JOSE
GONZALEZ-FALLA, Federal Public Defender’s Office,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-473
Before HAYNES, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Terry Allen Miles appeals the dismissal, as frivolous, of his civil rights
action alleging that the defendants, while representing Miles in a criminal
prosecution, disclosed confidential attorney-client communications to a third
party, made malicious and disparaging remarks about him to a third party,
verbally abused and threatened him, and failed to use exculpatory medical and
psychological evidence at trial. In connection with his appeal, Miles moves for
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50540 Document: 00515326880 Page: 2 Date Filed: 02/28/2020
No. 19-50540
leave to proceed in forma pauperis (IFP) and for a change of venue. Under 28
U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good faith.” Thus, lack of funds
is not the sole issue in assessing a requires to proceed in forma pauperis on
appeal. In Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997), we held that a
litigant may challenge this conclusion of lack of good faith on appeal; thus, we
construe Miles’s appeal as such a challenge.
However, Miles does not address the district court’s pertinent findings
that, as public defenders performing traditional legal functions, Aldredge and
Gonzalez-Falla could not be sued under Bivens v. Six Unknown Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), or 42 U.S.C. § 1983, see Polk
County v. Dodson, 454 U.S. 312, 325 (1981), or that Miles’s claims are, in any
event, barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Consequently, he fails to show that the district court abused its
discretion in denying IFP status because of the lack of a good faith basis for
the appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982). We accordingly deny the IFP motion.
We also deny Miles’s motion for a change of venue because he did not
first seek a change of venue in the district court. See United States v. Corbo,
555 F.2d 1279, 1281 (5th Cir. 1977). Finally, because Miles’s appeal is frivolous
in light of Polk County and Heck, and because the merits of his appeal “are so
intertwined with the [IFP] certification decision as to constitute the same
issue,” Baugh, 117 F.3d at 202 & n.24, we exercise our discretion to dismiss
the appeal as frivolous, see 5TH CIR. R. 42.2.
The dismissal of Miles’s civil rights action and the dismissal of this
appeal, both as frivolous, each count as a strike under 28 U.S.C. § 1915(g). See
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No. 19-50540
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Miles 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 28 U.S.C.
§ 1915(g).
MOTION TO PROCEED IFP DENIED; MOTION FOR CHANGE OF
VENUE DENIED; APPEAL DISMISSED AS FRIVOLOUS; THREE-
STRIKES WARNING ISSUED.
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