Michael Haendel v. Michael Pont

Case: 13-50275 Document: 00512464707 Page: 1 Date Filed: 12/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50275 December 9, 2013
Summary Calendar
Lyle W. Cayce
Clerk
MICHAEL HAENDEL,
Plaintiff-Appellant
v.
MICHAEL PONT, in his individual and official capacity; SHERRY STATMAN,
In her individual capacity and in her official capacity as Austin Municipal
Court Judge,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:13-CV-33
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Michael Haendel moves this court for authorization to proceed in forma
pauperis (IFP) on appeal from the district court’s dismissal of his 42 U.S.C.
§ 1983 suit. The district court granted the defendants’ Federal Rule of Civil
Procedure 12(b)(6) motion and alternately concluded that dismissal pursuant
to 28 U.S.C. § 1915(e)(2)(B) was warranted because the suit was frivolous and
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50275
raised claims against an immune defendant. By moving this court for
IFP status, Haendel challenges the district court’s certification that his appeal
was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). We conduct a de novo review of the district court’s dismissal. See
Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009); In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007); Walter v. Torres, 917
F.2d 1379, 1383 (5th Cir. 1990).
Consistent with his pleadings in the district court, Haendel’s appellate
brief alleges numerous facts that are immaterial to his claims against the
named parties and raises allegations against individuals who are not parties
to this suit. He also contends, inter alia, that several officials have not
produced their oaths of office, that the district court improperly
recharacterized his suit, and that he should be permitted to take an
interlocutory appeal. Haendel has not shown error in connection with the
district court’s determinations that his suit was frivolous and should be
dismissed because his claims against the defendants were barred by
limitations and absolute judicial immunity, nor has he shown that the district
court erred by concluding that the Texas Penal Code does not provide a private
cause of action.
Insofar as he contends that the record does not show that he was served
with the defendants’ motion to dismiss, the record itself refutes this allegation.
Additionally, even if he was not served with this item, then we would still
uphold the dismissal on the alternate basis that it was proper under
§ 1915(e)(2). See Brewster v. Dretke, 587 F.3d 764, 769 n.3 (5th Cir. 2009). His
complaint that the record lacks findings and conclusions in accordance with
Federal Rule of Civil Procedure 52 is, as the district court noted, misplaced.
That Rule is inapposite because no trial was held. Finally, while Haendel
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No. 13-50275
complains that the district court forbade him from filing additional documents,
the record shows that this order was entered after he had noticed his appeal,
which “divest[ed] the district court of jurisdiction to take any action with
regard to the matter except in aid of the appeal.” See United States v. Green,
882 F.2d 999, 1001 (5th Cir. 1989).
This appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219–20 (5th Cir.1983). Accordingly, Haendel’s IFP motion
is DENIED, and the appeal is DISMISSED. See Baugh, 117 F.3d at 202; 5TH
CIR. R. 42.2.
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