Derrick Pierre v. Local Rule Policy Maker ( 2020 )

Case: 19-30738 Document: 00515668684 Page: 1 Date Filed: 12/10/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 10, 2020
No. 19-30738 Lyle W. Cayce
Clerk
Derrick B. Pierre,
Plaintiff—Appellant,
versus
Local Rule Policy Maker for the First Circuit Court of
Appeal,
Defendant—Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:18-CV-1094
Before Stewart, Graves, and Higginson, Circuit Judges.
Per Curiam:*
Derrick B. Pierre, Louisiana prisoner # 315407, seeks leave to proceed
in forma pauperis (IFP) on appeal from the district court’s dismissal of his
42 U.S.C. § 1983 civil rights complaint for failure to state a claim. By moving
to proceed IFP, Pierre is challenging the district court’s certification that his
*
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opinion should not be published and is not precedent except under the limited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.
Case: 19-30738 Document: 00515668684 Page: 2 Date Filed: 12/10/2020
No. 19-30738
appeal was not taken in good faith. Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). Our inquiry into Pierre’s good faith “is limited to whether the
appeal involves legal points arguable on their merits.” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
To state a claim under § 1983, a plaintiff must allege “that [he was]
deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). A violation of
state law standing alone does not establish a violation of federal constitutional
law. See Giovanni v. Lynn, 48 F.3d 908, 912-13 (5th Cir. 1995). A complaint
fails to state a claim on which relief may be granted when it does not
“contain[] sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Legate v. Livingston, 822 F.3d 207, 210 (5th
Cir. 2016) (internal quotation marks and citation omitted).
The district court dismissed Pierre’s complaint because the gravamen
of it is that the local rules adopted by the Louisiana Court of Appeals for the
First Circuit interfered with his rights to a complete appeal, due process, and
equal protection by failing to require the automatic inclusion of multiple bill
hearing transcripts in the appellate record. He therefore asked the district
court to order the First Circuit to retroactively adopt and implement such a
rule. However, as the district court noted, a federal court does “not sit as a
super state supreme court” or “act as an arm” of the state appellate courts.
Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986) (internal quotation
marks omitted) (habeas case). Furthermore, the Louisiana Supreme Court
is the only court vested with supervisory jurisdiction over the other Louisiana
state courts. See La. Const. art. 5, § 5(A). Thus, the district court
appropriately determined that it could not order the First Circuit to adopt
any rules, procedural or otherwise. Moreover, to the extent that Pierre
ultimately seeks another opportunity to appeal his conviction and
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No. 19-30738
sentence, any claims that challenge the fact or duration of his incarceration
must be brought in a habeas corpus proceeding. See Preiser v. Rodriguez, 411
U.S. 475, 500 (1973).
In light of the foregoing, Pierre has failed to show that he will present
a nonfrivolous issue on appeal. See Howard, 707 F.2d at 220. Accordingly,
Pierre’s IFP motion is DENIED. Additionally, because this appeal is
frivolous, it is DISMISSED. See 5th Cir. R. 42.2; Baugh, 117 F.3d at
202 n.24. The district court’s dismissal of Pierre’s complaint and our
dismissal of this appeal both count as strikes under 28 U.S.C. § 1915(g). See
Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). Pierre is
CAUTIONED that if he accumulates three strikes, he will not be allowed
to proceed IFP in any civil action or appeal filed while he is detained or
incarcerated in any facility unless he is under imminent danger of serious
physical injury.
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