Overille Thompson, Jr. v. Susan Brown

Filing

UNPUBLISHED OPINION ORDER FILED. [15-20687 Dismissed as Frivolous] Judge: EGJ, Judge: WED, Judge: LHS. Mandate pull date is 02/23/2017; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Overille Denton Thompson, Jr. [8131144-2] [15-20687]

Case: 15-20687

Document: 00513860799

Page: 1

Date Filed: 02/02/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 15-20687

FILED
February 2, 2017
Lyle W. Cayce
Clerk

OVERILLE DENTON THOMPSON, JR.,
Plaintiff-Appellant
v.
SUSAN BROWN,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-3025
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *

Overille Denton Thompson, Jr., Texas prisoner #02425321, moves for
leave to proceed in forma pauperis (IFP) in this appeal from the district court’s
dismissal of his 42 U.S.C. § 1983 action.

The district court dismissed

Thompson’s complaint as frivolous and for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
By moving to proceed IFP, Thompson is challenging the district court’s
certification that this appeal was not taken in good faith. See Baugh v. Taylor,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith
“is limited to whether the appeal involves legal points arguable on their merits
(and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983) (internal quotation marks and citation omitted).
Thompson argues that he was unlawfully confined because Judge Susan
Brown refused to obey a writ of habeas corpus and that Judge Brown deprived
him of the opportunity to full and fair litigation. He also contends that Judge
Brown was not entitled to judicial immunity.
A judge is absolutely immune from a suit for damages except for actions
not taken in a judicial capacity or actions taken in the absence of all
jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12 (1991). In other words, a trial
judge enjoys absolute immunity for actions taken in the course of his judicial
function unless they were nonjudicial or performed with no jurisdiction. Boyd
v. Biggers, 31 F.3d 279, 284-85 (5th Cir. 1994). The district court did not err
in determining that Judge Brown was entitled to absolute judicial immunity.
See Boyd, 31 F.3d at 284-85; Mireles, 502 U.S. at 11-12. Thompson therefore
has not shown that he will raise a nonfrivolous issue on appeal. Accordingly,
his motion for leave to proceed IFP on appeal is denied, and his appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike under
§ 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015); Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

In addition, Thompson

accumulated two other strikes in Thompson v. Nicholas, No. 4:15-cv-03020
(S.D. Tex. Oct. 15, 2015) and Thompson v. Anderson, No. 4:15-cv-03019 (S.D.
Tex. Oct. 15, 2015). Thus, Thompson has now accumulated at least three
strikes. Thompson therefore is barred from proceeding IFP in any civil action

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or appeal while incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
IFP DENIED: APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.

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