eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2022-03

Dunsmore v. Kenyon ( 2022 )


Menu:
 
  • Case: 21-10496      Document: 00516231248         Page: 1     Date Filed: 03/09/2022
United States Court of Appeals
for the Fifth Circuit                                 United States Court of Appeals
Fifth Circuit
FILED
March 9, 2022
No. 21-10496                             Lyle W. Cayce
Summary Calendar                                Clerk
Richard A. Dunsmore, individually, and as a resident of the Texas
Civil Commitment Center,
Plaintiff—Appellant,
versus
Christine Kenyon, Psy. D in her individual capacity, and as contracted
clinical examiner for the Texas Civil Commitment Office,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CV-544
Before Southwick, Graves, and Costa, Circuit Judges.
Per Curiam:*
Richard A. Dunsmore, resident # 06526120 at the Texas Civil
Commitment Center, moves for leave to proceed in forma pauperis (IFP) on
appeal from the dismissal of his civil rights suit against Dr. Christine Kenyon.
*
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opinion should not be published and is not precedent except under the limited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: 21-10496      Document: 00516231248          Page: 2   Date Filed: 03/09/2022
No. 21-10496
Dunsmore is civilly committed under Texas law as a sexually violent predator
(SVP), and Kenyon was the expert who examined him for a biennial review
of his civil commitment. Dunsmore also moves for the appointment of
counsel and has filed an appellate brief.
By moving to proceed IFP here, Dunsmore is challenging the district
court’s certification that this appeal was not taken in good faith. See Baugh
v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). Our inquiry into an appellant’s
good faith “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).
Dunsmore contends that the district court’s application of the
favorable termination rule of Heck v. Humphrey,
    512 U.S. 477
     (1994), was
erroneous because his amended complaint withdrew all of his
    42 U.S.C. § 1983
     claims. Regarding the district court’s alternative determination that
he failed to state a coherent legal theory as to how Kenyon violated his
constitutional rights, Dunsmore argues that the district court erroneously
conflated Texas’s procedures for biennial reviews with the procedures
applicable to the initial trial for an SVP civil commitment. Dunsmore also
reiterates his allegations that Kenyon’s report on his biennial exam was
faulty, he did not have an opportunity to challenge her report, she engaged in
a conspiracy to keep him confined perpetually, and Texas’s civil
commitment scheme is unconstitutional.
We may affirm the district court’s decision on any basis supported by
the record. See Berry v. Brady,
    192 F.3d 504
    , 507 (5th Cir. 1999). We need
not reach the district court’s grounds for dismissal because the appeal
presents no nonfrivolous issues for the reasons below. Given the withdrawal
of his § 1983 claims, the only federal claims asserted in Dunsmore’s amended
complaint were a
    42 U.S.C. § 1985
     claim of conspiracy to interfere with his
2
Case: 21-10496      Document: 00516231248            Page: 3   Date Filed: 03/09/2022
No. 21-10496
civil rights and a
    42 U.S.C. § 1986
     claim of neglect to prevent a conspiracy to
violate his civil rights. “Plaintiffs who assert conspiracy claims under the
civil rights statutes must plead the operative facts showing a prior illegal
agreement, and bald allegations of an agreement do not suffice.” Way v.
Mueller Brass Co.,
    840 F.2d 303
    , 308 (5th Cir. 1988) (internal quotation marks
and citation omitted).
Dunsmore does not provide specific facts supporting his allegations
that Kenyon purposefully authored a report adverse to him because she was
controlled by the Texas Civil Commitment Office (TCCO) as its paid expert
or that she and the TCCO had an arrangement to keep SVPs confined
perpetually. Such speculative and conclusory allegations are insufficient to
state a conspiracy claim under § 1985. See Cantu v. Moody,
    933 F.3d 414
    , 420
(5th Cir. 2019); Shaw v. Villanueva,
    918 F.3d 414
    , 419 (5th Cir. 2019).
Because a valid § 1985 claim is a prerequisite to a § 1986 claim, Dunsmore
also failed to state a claim under § 1986. See § 1986; Lockett v. New Orleans
City,
    607 F.3d 992
    , 1002 (5th Cir. 2010). Accordingly, the district court’s
dismissal of the case pursuant to
    28 U.S.C. § 1915
    (e)(2)(B) does not present
a nonfrivolous issue for appeal.
The instant appeal is without arguable merit and is DISMISSED as
frivolous. See Baugh,
    117 F.3d at 
    202 n.24; Howard,
    707 F.2d at 220
    ; 5th
Cir. R. 42.2. Dunsmore’s motions to appoint counsel and proceed IFP are
DENIED.
3