Terry James v. Emily Tobolowski

Case: 12-10747 Document: 00512188076 Page: 1 Date Filed: 03/26/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2013
No. 12-10747
Summary Calendar Lyle W. Cayce
Clerk
TERRY R. JAMES,
Plaintiff-Appellant
v.
JUDGE EMILY TOBOLOWSKI, 298th Judicial Court; FIFTH DISTRICT
COURT OF APPEALS,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CV-910
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Terry R. James filed a pro se civil rights complaint against Hon. Emily
Tobolowski (sic) of the 298th Civil District Court in Dallas County, Texas, and
Texas’s Fifth District Court of Appeals. The district court allowed James to sue
in forma pauperis (IFP) but ultimately dismissed his suit for lack of subject
matter jurisdiction. The district court also certified that any appeal would not
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-10747 Document: 00512188076 Page: 2 Date Filed: 03/26/2013
No. 12-10747
be taken in good faith. James now moves for leave to appeal IFP and requests
appointment of counsel on appeal.
By moving for IFP status in this court, James is challenging the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). James argues that he was erroneously
denied access to the courts and that the Texas vexatious litigant statute is
unconstitutional. These arguments, however, are not directed to the district
court’s reason for certifying that James’s appeal was not taken in good faith.
“Although pro se briefs are afforded liberal construction, . . . even pro se
litigants must brief arguments in order to preserve them.” Mapes v. Bishop, 541
F.3d 582, 584 (5th Cir. 2008) (internal citation omitted). James has failed to
brief any argument challenging the district court’s certification that his appeal
was not taken in good faith, nor has he briefed any challenge to the district
court’s reasons for its certification decision. See Baugh, 117 F.3d at 202.
Accordingly, he has “effectively abandoned” any challenge to the district court’s
certification decision, see Mapes, 541 F.3d at 584, and he has failed to show that
his 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).
In addition, to the extent James sought injunctive relief against the
defendants, § 1983 expressly provides that “in any action brought against a
judicial officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.” 42 U.S.C. § 1983. This is an additional
basis for concluding that the appeal is frivolous.
In light of the foregoing, we deny James’s motion for leave to appeal IFP,
and we dismiss the appeal as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH
CIR. R. 42.2. We also deny his motion for appointment of counsel.
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No. 12-10747
James is cautioned that the filing of repetitive or frivolous pleadings will
invite the imposition of sanctions, which may include dismissal, monetary
sanctions, and restrictions on his ability to file pleadings in this court and any
court subject to this court’s jurisdiction.
MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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