Vera v. Bd Jdg of Nueces Cty

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2007
No. 07-40300
Summary Calendar Charles R. Fulbruge III
Clerk
ANTONIO F VERA
Plaintiff-Appellant
v.
BOARD OF JUDGES OF THE JUDICIAL DISTRICT OF NUECES COUNTY
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CV-51
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Antonio F. Vera, Texas pre-trial detainee # 10142862, filed a civil rights
lawsuit pursuant to 42 U.S.C. § 1983. The magistrate judge (MJ) assigned to the
case questioned Vera during a Spears hearing.1 On the MJ’s recommendation,
the district court dismissed Vera’s lawsuit. Because the district court dismissed
Vera’s lawsuit as both frivolous and for failure to state a claim under
*
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should not be published and is not precedent except under the limited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.
1
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 07-40300
§ 1915(e)(2)(B)(i) and (ii) as well as § 1915A(b)(1), our review is de novo. Geiger
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Like his complaint below, Vera’s appeal brief is largely incoherent. The
closest Vera comes to making an argument addressing the district court’s
dismissal of his case is a series of conclusory assertions that he has stated
nonfrivolous claims upon which relief can be granted. First, Vera suggests that
his rights were violated because the Board of Judges of Nueces County have
neglected their obligation to train judges, supervise the administration justice,
and “prevent a pervasive and massive series of criminal schemes.” The district
court properly rejected these claims on the basis that “[j]udges enjoy absolute
immunity from liability for judicial or adjudicatory acts.” Bauer v. Texas, 341
F.3d 352, 357 (5th Cir. 2003) (citation omitted). Although Vera also challenges
the district court’s reasoning that Vera failed to state a claim against the Board
because § 1983 does not create respondeat superior liability, that finding was
proper as well. See, e.g., Steward v. Murphy, 174 F.3d 530, 536 (5th Cir. 1999).
Vera next suggests that the district court misapplied Younger v. Harris,
401 U.S. 37 (1971). Because Vera’s claims involve an ongoing state judicial
proceeding, Texas has a compelling interest in its criminal justice system, and
Vera can raise his constitutional concerns during the criminal proceedings, the
district court properly abstained from intervening in Vera’s state criminal case.
Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 518-19 (5th Cir. 2004). Vera also
contends that he stated a claim for conspiracy, but the district court properly
found that Vera has never actually described the acts of the defendants which
he believes renders them liable under § 1983. Because “a plaintiff's obligation
to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action
will not do,” Bell Atl. Corp., 127 S. Ct. at 1964-65 (citation omitted; alteration in
original), Vera has failed to state a conspiracy claim. Vera suggests in
conclusory fashion that he has stated a claim against his court-appointed
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No. 07-40300
attorney, but Vera’s court-appointed attorney was not a state actor for purposes
of § 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). Thus, Vera has
failed to identify any error in the district court’s ruling. In addition, while pro
se briefs are liberally construed, even pro se litigants must brief arguments in
order to preserve them. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995);
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (same). Accordingly, any
other claims Vera raised below are deemed abandoned.
For the first time on appeal, Vera contends that his rights were violated
because he was reindicted and because the state used one of two convictions of
October 25th, 1966 to “cover-up the other indictment.” In addition, Vera points
to a newspaper article that allegedly details the Texas Court of Criminal
Appeals’s mishandling of appeals by other prisoners, and Vera asserts that this
demonstrates that his rights have been violated. Because this court typically
does not consider claims that are raised for the first time on appeal, see Yohey,
985 F.2d at 225, we decline to consider these claims.
Thus, Vera’s brief fails to raise any issue of arguable merit, and we dismiss
his appeal as frivolous. See 5TH CIR. R. 42.2; Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996). The district court’s dismissal of Vera’s § 1983 suit as
frivolous and for failure to state a claim pursuant to § 1915(e)(2)(B) and
§ 1915A(b)(1) and this court’s dismissal of this appeal as frivolous both count as
strikes for purposes of § 1915(g). See Adepegba, 103 F.3d at 385-87. Vera
previously accumulated two strikes in another case. See Vera v. Martin, 253
F.3d 705, 705 (5th Cir. 2001) (unpublished); Vera v. Martin, No. A-00-CA-380
(W.D. Tex. Sep. 21, 2000) (order). As Vera has now accumulated at least three
strikes, he is barred from proceeding in forma pauperis pursuant to 28 U.S.C.
§ 1915(g) while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury.
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.
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