Francis Leary v. Rick Thaler, et al
UNPUBLISHED OPINION FILED. [14-10053 Affirmed ] Judge: JES , Judge: JLW , Judge: JWE Mandate pull date is 08/28/2014; denying motion to appoint counsel filed by Appellant Mr. Francis J. Leary [7593014-2] [14-10053]
Date Filed: 08/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
August 7, 2014
Lyle W. Cayce
FRANCIS J. LEARY, Also Known as Francis Joseph Leary,
Also Known as Frank Leary, Also Known as Frank J. Leary,
Also Known as Justin Hayward, Also Known as John Lodge,
Also Known as Francis Joseph Leary, Jr.,
RICK THALER, Director, Texas Department of Criminal Justice;
GLENN, Law Library Supervisor; DAVIS, Law Library Officer;
DAVID, Assistant Warden; V. BARROW, Assistant Program Administrator;
GLENN, Mailroom Supervisor,
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 08/07/2014
Francis Leary, Texas prisoner # 1495334, appeals a judgment dismissing
his 42 U.S.C. § 1983 complaint for failure to state a claim and as frivolous
under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1). Leary alleged that
prison officials and employees violated his right of access to courts by obstructing his ability to file a timely petition for writ of certiorari.
We apply de novo review to a prisoner’s action dismissed for failure to
state a claim. Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). We have
reviewed the record and Leary’s brief and agree with the dismissal for failure
to state a claim on the alternative ground that Leary did not “identify a nonfrivolous, arguable underlying claim” and describe it “well enough to apply the
‘nonfrivolous’ test and to show that the ‘arguable’ nature of the underlying
claim is more than hope.” Christopher v. Harbury, 536 U.S. 403, 415−16 (2002)
(internal quotation marks and citation omitted). In the district court, Leary
did not address the nature of his certiorari petition or describe the claim(s) he
sought to raise therein.
Accordingly, the judgment is AFFIRMED. Leary’s motion for appointment of counsel is DENIED.
The dismissal of Leary’s civil complaint for failure to state a claim counts
as a strike for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). Leary is warned that if he accumulates three strikes,
he will not be able to proceed in forma pauperis in any civil action or appeal
filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
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