Brian Williams v. Bowie County, Texas, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [16-41610 Dismissed as Frivolous] Judge: JWE, Judge: JEG, Judge: JCH. Mandate issue date is 05/07/2018; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Brian Williams [8490282-2]; denying motion to appoint counsel filed by Appellant Mr. Brian Williams [8423971-2] [16-41610]

Case: 16-41610

Document: 00514429509

Page: 1

Date Filed: 04/13/2018

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

FILED

No. 16-41610

April 13, 2018
Lyle W. Cayce
Clerk

BRIAN WILLIAMS,
Plaintiff-Appellant
v.

BOWIE COUNTY, TEXAS; SAMANTHA OGLESBY, District Attorney; RICK
SHUMAKER, Chief Public Defender,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:16-CV-83
Before ELROD, GRAVES and HO, Circuit Judges.
PER CURIAM: *
Brian Williams filed a civil rights complaint seeking redress for the
alleged wrongful actions of the prosecutor, his court-appointed attorney, and
Bowie County, Texas, in connection with state criminal proceedings that led to
his conviction of three counts of robbery.

The district court dismissed

Williams’s suit under 28 U.S.C. § 1915(A) as frivolous and for failure to state
a claim upon which relief could be granted. It denied Williams’s request to

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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proceed in forma pauperis (IFP) on appeal. This court is now presented with
Williams’s IFP motion.
By moving for IFP status in this court, Williams challenges the district
court’s denial of his request for leave to proceed IFP on appeal, which was
grounded in its determination that his appeal was not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into
whether an appeal is taken in 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).
The district court dismissed Williams’s claims against Oglesby under 42
U.S.C. §§ 1983, 1985, and 1986 as barred under the doctrine of absolute
prosecutorial immunity and against Shumaker as conclusory and because
Shumaker, as a court appointed public defender, was not a state actor. The
district court judge noted, in addition, that Williams’s claims against Oglesby
and Shumaker were barred under Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), to the extent they implicated the validity of his state convictions. It
dismissed Williams’s § 1983 claim against Bowie County because it could not
be held liable for the actions of the state trial court judge. Finally, the district
court dismissed Williams’s claims against Bowie County for violating the
Americans with Disabilities Act (ADA) because he failed to adequately allege
a disability or that he had been excluded from participation in, or denied
benefits of, services, programs, or activities on account of his disability.
On appeal, Williams asserts generally that the district court erred when
it dismissed his complaint and, in particular, that Bowie County violated the
ADA. However, he has not refuted any of the conclusions upon which the
district court relied in dismissing his complaint. Williams has not shown that

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he will raise a nonfrivolous issue on appeal. See Howard, 707 F.2d at 220.
Accordingly, his IFP motion is DENIED. Because this appeal is frivolous, it is
DISMISSED. See Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at 219-20;
5TH CIR. R. 42.2. Williams’s motion for the appointment of counsel also is
DENIED.
Both the district court’s dismissal of Williams’s § 1983 complaint and the
dismissal of this appeal as frivolous count as strikes under the three-strikes
provision, 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 38788 (5th Cir. 1996). Williams is cautioned that if he accumulates another strike
under § 1915(g), he will not be permitted 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).
MOTIONS DENIED; SANCTION WARNING ISSUED.

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