Gilliard v. Groesbeck Police Dept ( 2023 )

Case: 23-50457 Document: 00516977020 Page: 1 Date Filed: 11/22/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50457
Summary Calendar FILED
____________ November 22, 2023
Lyle W. Cayce
Adrian Gilliard, Clerk
Plaintiff—Appellant,
versus
Groesbeck Police Department; Chris Henson; John
Blanco; Limestone District Attorneys Office;
Kathleen Coffey,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:23-CV-36
______________________________
Before Stewart, Clement, and Engelhardt, Circuit Judges.
Per Curiam: *
Adrian Gilliard has filed a motion to proceed in forma pauperis (IFP)
in the instant appeal from the dismissal of his civil rights complaint for failure
to state a claim. Gilliard’s IFP motion challenges the district court’s
determination that the appeal is not taken in good faith. See Baugh v. Taylor,
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-50457
117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into whether the
appeal is taken in 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) (citation omitted).
In support of his IFP motion, Gilliard has filed a rambling pro se brief
that does little more than repeat some of the factual allegations he made in
the district court regarding an incident that occurred on April 25, 2022. 1 He
does not meaningfully address the district court’s stated reasons for
dismissing his claims; arguably he has failed to adequately brief any issue. See
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). However, even if we regard Gilliard’s repetition of relevant factual
allegations as sufficient briefing, Gilliard fails to show that there is a
nonfrivolous issue for appeal.
In connection with his false arrest claim, Gilliard renews his
contention that he did not make physical contact with his estranged wife in
an incident that occurred in a church parking lot. However, his pleadings fail
to “plausibly allege that [the defendants] did not have probable cause to
arrest him.” Arnold v. Williams, 979 F.3d 262, 269 (5th Cir. 2020) (internal
quotation marks and citation omitted).
Gilliard’s claim against John Blanco for the alleged loss of property
revolves around the contention that, due to Blanco’s failure to investigate,
Blanco did not understand that Gilliard’s vehicle was his separate property,
despite the Texas community property regime. However, this claim sounds
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1
To the extent that Gilliard’s pleadings raised claims based on events that occurred
on any other date, he has abandoned such claims by failing to brief them. See Yohey
v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
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No. 23-50457
in negligence, and “the Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss of or injury to life, liberty,
or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986). To the extent
that Gilliard asserts in his brief that Chris Henson played a role in the loss of
his property by physically handing the keys to his wife, we note that Gilliard
did not make such a factual allegation in his district court pleadings. This
court “will not allow a party to raise an issue for the first time on appeal
merely because a party believes that he might prevail if given the opportunity
to try a case again on a different theory.” Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999) (internal quotation marks and citation
omitted). As for his claim against the Groesbeck Police Department,
Gilliard’s contention that city policy was violated when the police failed to
impound his uninsured vehicle and instead allowed his wife to drive it fails to
demonstrate that the city’s policy or custom was the “moving force” of the
alleged constitutional violation. See Monell v. Dep’t of Soc. Servs. of City of
N.Y., 436 U.S. 658, 694 (1978).
As the district court determined, Kathleen Coffey is entitled to
absolute immunity for actions performed within the scope of her
prosecutorial duties. See Imbler v. Pachtman, 424 U.S. 409, 420 (1976).
Gilliard makes no cogent argument that Coffey’s actions in his case are not
entitled to immunity. Finally, Gilliard fails entirely to reprise any factual
allegations regarding the Limestone District Attorney’s Office (LDAO), nor
does he address the district court’s determination that the LDAO is not a
separate legal entity that can be sued. See Edmiston v. Louisiana Small Bus.
Dev. Ctr., 931 F.3d 403, 406 (5th Cir. 2019). He has therefore abandoned the
claim. See Yohey v. Collins, 985 F.2d 222, 224-25 (1993).
In view of the foregoing, Gilliard fails to show that his appeal will
involve a nonfrivolous issue. See Howard, 707 F.2d at 220. Accordingly, his
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No. 23-50457
IFP motion is DENIED, and his appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2.
4