Calhoun v. Marshall ( 2023 )

Case: 22-40733 Document: 00516695035 Page: 1 Date Filed: 03/30/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-40733 March 30, 2023
Summary Calendar Lyle W. Cayce
____________ Clerk
Joshua Calhoun,
Plaintiff—Appellant,
versus
LaMorris Marshall; Chase R. Johnson; Nickie Page;
Dylan Adams; Lonnie Townsend; Zachary Chapman;
Michael Davis,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:21-CV-279
______________________________
Before Clement, Southwick, and Higginson, Circuit Judges.
Per Curiam: *
Joshua Calhoun, Texas prisoner # 1985495, seeks leave to proceed in
forma pauperis (IFP) in this interlocutory appeal from an order of the district
court that overruled Calhoun’s objections to an order issue by the magistrate
judge that terminated the appointment of counsel and effectively denied the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40733 Document: 00516695035 Page: 2 Date Filed: 03/30/2023
No. 22-40733
appointment of new counsel, and also denied Calhoun’s request for
injunctive relief. By moving in this court to proceed IFP, Calhoun is
challenging the district court’s certification that the instant appeal is not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). In
reviewing the district court’s decision, 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 marks and citation omitted).
The district court’s order denying injunctive relief is immediately
appealable. See 28 U.S.C. § 1292(a); Byrum v. Landreth, 566 F.3d 442, 444
(5th Cir. 2009). However, to the extent Calhoun’s appeal is taken from an
order effectively denying the appointment of counsel, he has appealed from
the denial of a non-appealable interlocutory order. See Williams v. Catoe, 946
F.3d 278, 279 (5th Cir. 2020) (en banc). As such, the appeal is
DISMISSED IN PART for lack of jurisdiction. See id.In his IFP filings, Calhoun contends that the district court did not
properly determine that he was required to pay the filing fee in installments.
He asserts in an attenuated and conclusory fashion that his underlying civil
action against prison officials is meritorious. Also, Calhoun renews an
allegation that his former appointed counsel had an inappropriate
relationship and makes vague assertions that counsel withheld evidence.
Calhoun makes no meaningful effort to demonstrate that the district
court erred in denying his request for injunctive relief. Because he effectively
fails to challenge the district court’s ruling, Calhoun has abandoned the
relevant 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). As Calhoun fails to demonstrate that his appeal will involve a
nonfrivolous issue, his appeal is DISMISSED IN PART as frivolous, and
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No. 22-40733
his IFP motion is DENIED. See Baugh, 117 F.3d at 202 n.24; 5th Cir.
R. 42.2. Calhoun also moves for the appointment of counsel, for a remand
to the district court, and to compel the production of evidence. These and
any other remaining motions are DENIED.
Calhoun is WARNED that if he accumulates three strikes under 28
U.S.C. § 1915(g), 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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