Theoshamond Norman v. Jerry Johnson

Case: 16-30706 Document: 00514013755 Page: 1 Date Filed: 05/31/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30706 FILED
May 31, 2017
Lyle W. Cayce
THEOSHAMOND NORMAN, Clerk
Plaintiff-Appellant
v.
SERGEANT JERRY JOHNSON, in his individual and official capacity,
Defendant-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:15-CV-108
Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Theoshamond Norman, Louisiana prisoner # 407759, moves for leave to
proceed in forma pauperis (IFP) in his appeal of the grant of the defendant’s
motion for summary judgment and dismissal of his civil rights lawsuit as
untimely. By filing his motion, Norman challenges the district court’s
certification that his appeal is not taken in good faith. Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-30706
We review de novo a grant of summary judgment, “viewing all evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Surratt v. McClarin, 851 F.3d 389, 391-92
(5th Cir. 2017). The district court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
Louisiana’s one-year liberative prescription scheme, including any
applicable tolling provisions, applies to Norman’s 42 U.S.C. § 1983 action. See
Smith v. Reg’l Transit Auth., 827 F.3d 412, 421 (5th Cir. 2016); LA. CIV. CODE
ANN. art. 3492. On a motion for summary judgment, once the movant has
proved that the applicable limitations period has expired or prescribed, the
burden shifts to the nonmovant to prove that some exception to the application
of that period applies. Bourdais v. New Orleans City, 485 F.3d 294, 298 (5th
Cir. 2007).
On appeal, Norman raises several arguments that he did not raise in
opposition to or in support of summary judgment or in opposition to the
magistrate judge’s report. Such arguments are waived and are not considered.
See Keelan v. Majesco Software, Inc., 407 F.3d 332, 339-40 (5th Cir. 2005).
Norman failed to adequately brief, and thus waived, other arguments.
Although pro se briefs are construed liberally, see Haines v. Kerner, 404 U.S.
519, 520 (1972), even pro se litigants must brief arguments in order to preserve
them, Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Norman contends that the district court improperly decided disputed
factual issues regarding whether his complaint was filed timely. He argues
that his complaint should not be considered time barred because there were
periods during which he was legally unable to act due to his limited access to
a notary. As noted by the magistrate judge, neither Norman’s complaint nor
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No. 16-30706
any other documents are notarized. However, all of those documents are dated
February 19, 2015. There is no evidence in the record that supports Norman’s
assertion that his complaint should be considered filed before that date.
Accordingly, Norman failed to demonstrate that the fact of the date of filing
was “genuinely disputed.” See FED. R. CIV. P. 56(c)(1)(A) (requiring such
support). Because there was no such dispute, the district court did not base its
grant of summary judgment on its resolution of a factual dispute.
In light of the foregoing, Norman has failed to show that his appeal
involves legal points arguable on their merits. See Howard v. King, 707 F.3d
215, 220 (5th Cir. 1983). We therefore deny his IFP motion and dismiss the
appeal as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
The dismissal of the instant appeal as frivolous counts as a “strike” for
purposes of 28 U.S.C. § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759,
1763-64 (2015); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Norman is warned that once he accumulates three strikes, he may not 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).
MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL
DISMISSED; SANCTION WARNING ISSUED.
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