Carlos Love v. Kelly Siegler , 627 F. App'x 364 ( 2015 )

Case: 15-20107 Document: 00513316357 Page: 1 Date Filed: 12/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-20107 December 21, 2015
Summary Calendar
Lyle W. Cayce
Clerk
CARLOS LOVE,
Plaintiff-Appellant
v.
KELLY J. SIEGLER,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CV-3583
Before DAVIS, JONES, and DENNIS, Circuit Judges.
PER CURIAM: *
Carlos Love, Texas prisoner # 582511, appeals the district court’s
dismissal for failure to state a claim of his 42 U.S.C. § 1983 complaint.
According to Love, Harris County Assistant District Attorney Kelly J. Siegler
violated a plea agreement with him by filing a false offense report with the
Texas Department of Correctional Justice (TDCJ) and the Board of Pardons
and Paroles. Love contends that Siegler acted beyond the scope of her duties
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-20107
as a prosecutor when she falsely identified him as a sex offender in the offense
report.
The offense report which Love submitted with his complaint allegedly
showing that Siegler acted beyond the scope of her authority and filed false
charges against him supports neither assertion. The affidavit Love submits of
the Director of Classification and Records for the Correctional Institutions
Division of the TDCJ similarly fails to support his claims against Siegler.
Rather, the affidavit indicates only that prison authorities have reviewed and
will correct Love’s records to eliminate erroneous references to a sexual assault
of the victim by Love. Even under de novo review, therefore, Love fails to show
error in the district court’s conclusion that his complaint contained insufficient
factual matter to state a claim for relief against Siegler that was plausible on
its face. See Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013); Johnson v.
Kearns, 870 F.2d 992, 997-98 (5th Cir. 1989). The judgment of the district
court is AFFIRMED.
The district court’s dismissal of Love’s § 1983 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). Love has filed previously two
§ 1983 complaints that the district court dismissed for failure to state a claim
and for lack of jurisdiction to award monetary damages against the defendants
in their official capacities. See Love v. Owens, No. 1:13-CV-574, slip op. at 1-2
(W.D. Tex. Mar. 25, 2015); Love v. Jenkins, No. 1:13-CV-568, slip op at 1-2
(W.D. Tex. Mar. 25, 2015); see also Patton v. Jefferson Correctional Center,
136 F.3d 458, 463-64 (5th Cir. 1998). Therefore, Love has accumulated three
strikes for purposes of § 1915(g), and the 28 U.S.C. § 1915(g) bar is IMPOSED.
As a result, Love is prohibited from proceeding in forma pauperis in any civil
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No. 15-20107
action or appeal that is 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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