Collins Nyabwa v. Pam Lychner

Filing

REVISED UNPUBLISHED OPINION FILED. [8639552-2] [17-20121]

Case: 17-20121

Document: 00514239710

Page: 1

Date Filed: 11/16/2017

REVISED November 16, 2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 17-20121
Summary Calendar

FILED
November 15, 2017
Lyle W. Cayce
Clerk

COLLINS O. NYABWA,
Plaintiff-Appellant
v.
WARDEN PAM LYCHNER, State Jail, Individually and Official Capacity,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-2638
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Collins O. Nyabwa has moved for leave to proceed in forma pauperis
(IFP). He seeks to appeal the district court’s dismissal of his 42 U.S.C. § 1983
complaint as frivolous and malicious under 28 U.S.C. § 1915(e)(2)(B)(i). In that
complaint, Nyabwa alleged that the Pam Lychner State Jail and its warden
violated his constitutional rights by falsely imprisoning him based on his three
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Texas state convictions for improper photography.

After completion of

Nyabwa’s term of imprisonment, the Texas Court of Criminal Appeals held in
an

unrelated

case

that

the

improper

photography

statute

was

unconstitutional. See Ex parte Thompson, 442 S.W.3d 325, 351 (Tex. Crim.
App. 2014). In this case, the district court determined that Nyabwa’s claims
were legally frivolous and that his complaint was also malicious because he
repeated allegations that had been rejected in a previous civil action. The
district court denied Nyabwa leave to proceed IFP because it certified that his
appeal was not taken in good faith for the same reasons expressed in its
dismissal order.
By moving for leave to proceed IFP on appeal, Nyabwa challenges the
district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into his 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). Nyabwa’s motion
for leave to file a supplemental brief on appeal is GRANTED.
Nyabwa has not shown that the district court abused its discretion by
dismissing his complaint as frivolous or malicious. See Ruiz v. United States,
160 F.3d 273, 274-75 (5th Cir. 1998). He has not shown how his citation to the
actual-innocence prong of the test set forth in Reyes-Requena v. United States,
243 F.3d 893, 900-04 (5th Cir. 2001), is relevant in this context. Nyabwa is not
entitled to relief under 28 U.S.C. §§ 1495 and 2513 because those statutes
“come into play only after a defendant has succeeded in overturning his federal
conviction and is seeking damages for wrongful conviction.”

Freeman v.

Johnson, 79 F. App’x 3, 3 (5th Cir. 2003). Similarly, his reliance on Texas Civil
Practice and Remedies Code Ann. § 103.001 or other state law fails to state a

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valid claim under § 1983. See Southwestern Bell Tel., LP v. City of Houston,
529 F.3d 257, 260 (5th Cir. 2008). To the extent he seeks to invoke Nelson v.
Colorado, 137 S. Ct. 1249 (2017), we need not consider that argument because
it is raised for the first time on appeal. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999). In any event, Nelson does not directly
support his argument because that case did not involve a claim of false
imprisonment. Furthermore, examination of his complaint in this appeal and
his prior complaint dismissed in Nyabwa v. Warden, Individual and Official
Capacity, Pam Lychner State Jail, No. 4:16-cv-1643 (S.D. Tex. June 30, 2016),
supports the district court’s dismissal of his instant complaint as malicious.
See Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993).
Accordingly, Nyabwa has failed to show an error in the district court’s
certification decision and has not established that he will raise a nonfrivolous
issue on appeal.

See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220.

Nyabwa’s motion for leave to proceed IFP is DENIED, and his appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
Nyabwa is CAUTIONED that future frivolous, repetitive, or otherwise
abusive filings will result in the imposition of sanctions, including dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court
or any court subject to this court’s jurisdiction. He should review any pending
appeals and actions and move to dismiss any that are frivolous, repetitive, or
otherwise abusive.

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