Gilliam v. City of Fort Worth Texas , 187 F. App'x 387 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 26, 2006
Charles R. Fulbruge III
Clerk
No. 05-10201
Summary Calendar
TIM B. GILLIAM,
Plaintiff-Appellant,
versus
CITY OF FORT WORTH TEXAS; TARRANT COUNTY TEXAS; JONE E. GREY,
Vice Officer, Fort Worth,
Defendants-Appellees.
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CV-473-A
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Before REAVLEY, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Tim B. Gilliam, Texas inmate # 1175788, appeals the
dismissal of his 42 U.S.C. § 1983 action pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b). Gilliam contends that the defendants
violated his rights in numerous ways during his arrest,
subsequent incarceration, criminal trial, and a subsequent
probation revocation proceeding.
As the district court found, Gilliam has not shown that
Tarrant County had a role in the events surrounding his arrest.
*
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this opinion should not be published and is not precedent except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.
No. 05-10201
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Gilliam was arrested by Fort Worth police officers, he was
incarcerated in a jail run by the City of Mansfield, Texas, and
he was prosecuted by a district attorney acting as an agent of
the State of Texas. See Esteves v. Brock, 106 F.3d 674, 678 (5th
Cir. 1997) (A “district attorney is an agent of the state, not of
the county in which the criminal case happens to be prosecuted”).
We conclude that Gilliam’s claims against Officer Grey are
without merit. The district court did not err in holding that
the state court trial transcript showed that Officer Grey
believed that she had reached a deal with Gilliam for sex in
exchange for money. However, because he was charged with
committing a different offense than the one described by Grey, he
was acquitted. Gilliam’s claims against Grey lack an arguable
basis in fact or in law under 28 U.S.C. § 1915(e)(2)(B).
We further hold that Gilliam’s claims against Grey are
barred by Heck v. Humphrey, 512 U.S. 477 (1994). Although
Gilliam was acquitted of the criminal charge stemming from his
arrest, we conclude that a judgment in favor of Gilliam on his
arrest claims or on his claims of official oppression and
harassment would imply the invalidity of his revocation. See
Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) (applying
Heck to probation revocations); see also Esteves, 106 F.3d at 676(this court may affirm on any grounds supported by the record).
Gilliam’s claims against Fort Worth relating to his parole
revocation also are barred by Heck. His claims against Fort
No. 05-10201
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Worth relating to his incarceration lack an arguable basis in law
or fact under 28 U.S.C. § 1915(e)(2)(B). Gilliam has not alleged
facts to show a “direct causal link” between a policy or custom
of Fort Worth and the denial of his rights. See Board of County
Comm’rs v. Brown, 520 U.S. 397, 404 (1997). He was incarcerated
at a facility run by the City of Mansfield, not Fort Worth, and
he can not show a “direct causal link” between a Fort Worth
“policy” to deliver its prisoners to the custody of the Mansfield
jail and any unconstitutional conditions he suffered there.
Finally, as previously noted, Gilliam was prosecuted by the
district attorney, who was acting as an agent of the state. See
Esteves, 106 F.3d at 678.
Because this litigation presents no “exceptional
circumstances,” the district court did not abuse its discretion
in denying Gilliam’s motion for appointment of counsel, and we
deny Gilliam’s renewed motion for appointment of counsel. See
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Finally,
Gilliam’s motion for leave to file supplemental briefs also is
denied.
Gilliam is warned that the district court’s dismissal of his
action counts as a strike under 28 U.S.C. § 1915(g). If he
accumulates three strikes, he will not be able 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 Adepegba v.
No. 05-10201
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Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); 28 U.S.C.
§ 1915(g).
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; MOTION
TO FILE SUPPLEMENTAL BRIEFS DENIED; SANCTION WARNING ISSUED.