Kearley v. Parrish

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 5, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60628
Summary Calendar
VICTOR B. KEARLEY,
Plaintiff-Appellant,
versus
J. STEWART PARRISH; JOHN DOES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:03-CV-190-BN
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Victor B. Kearley, Mississippi prisoner #16946, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous. Kearley’s claim that counsel’s actions in defending
him were done under color of state law, thereby making counsel
liable under 42 U.S.C. § 1983 for ineffective assistance, is
without merit. Polk County v. Dodson, 454 U.S. 312 (1981). Nor
has Kearley stated a 42 U.S.C. § 1983 conspiracy claim upon which
*
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that this opinion should not be published and is not precedent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.
No. 03-60628
-2-
relief could be granted, as he has failed to plead the operative
facts upon which his claim is based. See Lynch v. Cannatella,
810 F.2d 1363, 1369-70 (5th Cir. 1987); see also Kane Enters. v.
MacGregor (USA) Inc., 322 F.3d 371, 374 (5th Cir. 2003).
Because Kearley did not allege in the district court that
the state public defender system was unconstitutional, this court
need not consider this claim. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999). Kearley’s argument that
the district judge lacked jurisdiction due to an administrative
order of reassignment to another judge is without merit.
Kearley’s appeal is without merit and is therefore DISMISSED
as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2. The dismissal of this appeal
as frivolous and the dismissal of the complaint by the district
court as frivolous both count as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388
(5th Cir. 1996). Kearley is therefore CAUTIONED that once he
accumulates three strikes, he will not be permitted to proceed in
forma pauperis 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 28 U.S.C.
§ 1915(g).
All outstanding motions are DENIED.
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED; MOTIONS
DENIED.