Kenneth Johnson v. Arthur Morrell, et al

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Kenneth Johnson v. Arthur Morrell, et al

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Case: 09-30874

Document: 00511185171

Page: 1

Date Filed: 07/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30874 S u m m a r y Calendar July 26, 2010 Lyle W. Cayce Clerk

K E N N E T H JOHNSON, P la in t if f -A p p e lla n t v. A R T H U R A. MORRELL, Clerk of Court; ORLEANS PARISH DISTRICT A T T O R N E Y ; SUPERINTENDENT OF POLICE DEPARTMENT OF ORLEANS P A R IS H , 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 Eastern District of Louisiana U S D C No. 2:09-CV-3753

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* K e n n e t h Johnson appeals the dismissal of his 42 U.S.C. § 1983 complaint in which he alleged that the defendants violated his federal civil rights by d e n y in g him Louisiana public records in their control or custody. Citing 28 U . S .C . §§ 1915(e)(2)(B) and 1915A(b)(1)), the district court dismissed the c o m p la in t as frivolous and for failure to state a claim upon which relief could be

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-30874

Document: 00511185171 Page: 2 No. 09-30874

Date Filed: 07/26/2010

g r a n t e d . Johnson will be permitted to pursue his appeal as a pauper if his IFP m o t io n in this court is timely, he is a pauper, and the appeal is taken in good fa it h , i.e., is nonfrivolous. See FED. R. APP. P. 24(a)(5); see also Carson v. Polley, 6 8 9 F.2d 562, 586 (5th Cir. 1982). Because the district court based its decision o n § 1915 and § 1915A both, review is de novo. Geiger v. Jowers, 404 F.3d 371, 3 7 3 (5th Cir. 2005). J o h n s o n makes clear that his complaint is that the defendants violated t h e ir official duties imposed by the Louisiana statutes governing access to public r e c o r d s and by the Louisiana Constitution. Johnson's claim for declaratory and in ju n c t iv e relief amounts to a request for a writ of mandamus against state o ffic ia ls , which is not authorized by § 1983 if no other relief is sought. See Moye v . Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973). Johnson's complaint states no basis for mandamus relief or for any other relief. Johnson does not even explain why he wants the records and how not having t h e m has harmed him; there is no claim that Johnson has even attempted to file a n y action in state court in which the requested records might be needed. A matter is frivolous if it presents no "legal points arguable on their m e r it s ." Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation m a r k s and citation omitted). Under 5TH CIR. R. 42.2, we may dismiss a frivolous a p p e a l sua sponte. Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997). J o h n s o n presents no issue that is not frivolous. See Howard, 707 F.2d at 220. Johnson has failed to show that the district court's dismissal of his complaint s h o u ld be reversed. See Geiger, 404 F.3d at 373. T h e district court's dismissal of Johnson's suit counts as a strike under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). So d o e s this court's dismissal of this appeal. See id. at 388. Additionally, Johnson a lr e a d y had two strikes before he filed this suit. See Johnson v. Moore, 316 F. A p p 'x 347, 348 (5th Cir. 2009), and Johnson v. Orleans Indigent, 70 F.3d 1268 * 1 (5th Cir. 1995). Because Johnson has accumulated at least three strikes, he 2

Case: 09-30874

Document: 00511185171 Page: 3 No. 09-30874

Date Filed: 07/26/2010

is barred from proceeding IFP in a civil action or an appeal from a judgment in a civil action or proceeding under § 1915 unless he is under imminent danger of s e r io u s physical injury. See § 1915(g). M O T I O N TO FILE SUPPLEMENTAL BRIEF GRANTED; MOTION TO P R O C E E D IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IM P O S E D .

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