Federico Hernandez-Hernandez v. Thomas Fagerberg

Filing

Case: 09-10959

Document: 00511204503

Page: 1

Date Filed: 08/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10959 S u m m a r y Calendar August 16, 2010 Lyle W. Cayce Clerk

F E D E R I C O HERNANDEZ-HERNANDEZ, P la in t if f -A p p e lla n t v. T H O M A S FAGERBERG, Esq., D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 1:09-CV-155

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* F e d e r ic o Hernandez-Hernandez (Hernandez), federal prisoner # 834441 8 0 , moves this court for leave to proceed in forma pauperis (IFP) on appeal fo llo w in g the dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for fa ilu r e to state a claim. Hernandez brought suit against his former defense c o u n s e l for actions taken by counsel during his representation of Hernandez on c r im in a l charges.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-10959

Document: 00511204503 Page: 2 No. 09-10959

Date Filed: 08/16/2010

H e r n a n d e z 's motion is construed as a challenge to the district court's d e t e r m in a t io n that the appeal is not taken in good faith. See Baugh v. Taylor, 1 1 7 F.3d 197, 202 (5th Cir. 1997). This court's inquiry into whether the appeal is taken in good faith "is limited to whether the appeal involves `legal points a r g u a b le on their merits (and therefore not frivolous).'" Howard v. King, 707 F .2 d 215, 220 (5th Cir. 1983) (citation omitted). To succeed in a § 1983 action, the plaintiff must establish a violation of the la w s or constitution of the United States and that this deprivation of rights was c a u s e d by a person acting under color of state law. Leffall v. Dallas Indep. Sch. D is t., 28 F.3d 521, 525 (5th Cir. 1994). An attorney does not act under color of s t a t e law when he "perform[s] a lawyer's traditional functions" as defense c o u n s e l in a criminal proceeding. Polk County v. Dodson, 454 U.S. 312, 325 (1 9 8 1 ). Hernandez's allegations against his counsel were based on the traditional fu n c tio n s of an attorney in a criminal proceeding. His appeal of the district c o u r t's determination that he failed to show state action is thus without merit. See Polk, 454 U.S. at 325. Accordingly, Hernandez's motion for IFP is denied a n d the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n. 24; 5th C ir . R. 42.2. The district court's dismissal of Hernandez's complaint and our dismissal o f this appeal as frivolous each count as strikes under 28 U.S.C. § 1915(g). See A d e p e g b a v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We caution

H e r n a n d e z that if he accumulates three strikes, he will not be permitted to p r o c e e d IFP in any civil action or appeal filed while incarcerated or detained in a n y facility unless he is under imminent danger of serious physical injury. See § 1915(g). MOTION DENIED; APPEAL DISMISSED; SANCTIONS WARNING IS S U E D .

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