Richard Miller v. Edith Clement, et al

Filing

UNPUBLISHED OPINION FILED. [16-31217 Dismissed as Frivolous in Part and Dismissed for Lack of Jurisdiction in Part] Judge: JLW, Judge: LHS, Judge: CH. Mandate issue date is 01/22/2018; denying motion to stay further proceedings in this court filed by Appellant Mr. Richard Nathaniel Miller [8455336-2] [16-31217]

Case: 16-31217

Document: 00514253124

Page: 1

Date Filed: 11/29/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-31217
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 29, 2017
Lyle W. Cayce
Clerk

RICHARD NATHANIEL MILLER,
Plaintiff-Appellant
v.

EDITH BROWN CLEMENT, United States Fifth Circuit Judge, Sued in
Official and Individual Capacities; W. EUGENE DAVIS, In Official Capacities
(Circuit Judge); GREGG J. COSTA, In Official Capacities (Circuit Judge); JAY
C. ZAINEY; ALMA L. CHASEZ, District Court Magistrate, Sued in Official
Individualized and Sovereignty Capacity; JOHN BEL EDWARDS, Governor,
Sued in Official Capacity; JEFF LANDRY, Attorney General Official Capacity;
LEON CANNIZZARO, Orleans Parish District Attorney's Office, Official
Capacity; ANDREW PICKETT, Assistant District Attorney Sued in Individual
and Official Capacities; J. BRYANT CLARK, Assistant District Attorney Sued
in Individual and Official Capacities; STATE OF LOUISIANA,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CV-5778
Before WIENER, SOUTHWICK, and HAYNES, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 16-31217

Document: 00514253124

Page: 2

Date Filed: 11/29/2017

No. 16-31217
Richard Nathaniel Miller, Louisiana prisoner # 347066, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action in part as frivolous, in
part for failure to state a claim, and in part based on the immunity of some of
the defendants.

In this court, Miller filed a “Motion to Stay/Motion for

Extension of Time,” arguing for the first time on appeal that his Fifth and
Fourteenth Amendment rights have been violated as a result of an obstruction
of justice, malfeasance in office, and federal prosecution witness tampering.
He further alleges that the defendants violated his right to be free from cruel
and unusual punishment by administering a toxic psychotropic drug that
caused him to suffer psychological and physiological problems. Miller requests
a stay until the United States Attorney conducts a criminal investigation.
Miller also raises new claims against the clerk of this court, Lyle Cayce, and
two employees of the clerk’s office. This court will not consider new legal
theories that have been raised for the first time on appeal absent extraordinary
circumstances. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 593 (5th Cir.
2006). Miller has not presented extraordinary circumstances as he has not
presented purely legal issues nor shown that the asserted errors were so
obvious that failure to consider them would result in a miscarriage of justice.
See id.; Conley v. Board of Trs. of Grenada Cnty. Hosp., 707 F.2d 175, 178 (5th
Cir. 1983). The motion to stay further proceedings is denied.
In his brief, Miller reasserts his claims and does not identify any error
in the district court’s dismissal of his claims. Thus, Miller has abandoned any
challenge to the district court’s dismissal of his claims. See Yohey v. Collins,
985 F.2d 222, 224–25 (5th Cir. 1993); Brinkmann v. Dallas Cty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
dismissed as frivolous.

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Accordingly, Miller’s appeal is

Case: 16-31217

Document: 00514253124

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Date Filed: 11/29/2017

No. 16-31217
The dismissal of this appeal as frivolous counts as a strike under
28 U.S.C. § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761–64 (2015);
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Miller is cautioned
that once he accumulates three strikes, he may not 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).
The district court determined that to the extent that Miller sought
habeas relief, his action was an unauthorized successive 28 U.S.C. § 2254
application, which must be dismissed.

The district court did not rule on

whether a certificate of appealability (“COA”) should be issued. We decline to
remand for a COA determination because a remand would be futile.

See

United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).
APPEAL DISMISSED IN PART AS FRIVOLOUS AND IN PART FOR
LACK OF JURISDICTION; DENY MOTION TO STAY FURTHER
PROCEEDINGS; SANCTION WARNING ISSUED.

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