Maynard v. Price Realty Co. , 102 F. App'x 854 ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
June 23, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-11339
Conference Calendar
BRIAN K. MAYNARD,
Plaintiff-Appellant,
versus
PRICE REALTY CO.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-2030-R
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Brian K. Maynard, a Texas resident, moves to proceed
in forma pauperis (“IFP”) on appeal from the district court’s
order granting the defendants’ FED. R. CIV. P. 12(b)(6) motion to
dismiss his complaint, purportedly filed pursuant to the civil
rights provision, 42 U.S.C. § 1983, for failure to state a claim
on which relief may be granted. By moving for IFP, Maynard is
challenging the district court’s certification that IFP status
should not be granted because the appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997);
28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). Maynard’s IFP
*
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this opinion should not be published and is not precedent except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. 03-11339
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“motion must be directed solely to the trial court’s reasons for
the certification decision.” Baugh, 117 F.3d at 202.
Maynard alleged that he formerly lived in and worked for a
Dallas apartment complex operated by Price Realty Co., and that,
after such relationship was terminated, Price Realty maliciously
caused fraudulent information to appear in Maynard’s credit
report. Maynard alleged that these actions violated various
constitutional rights and Title VII of the Civil Rights Act. He
also asserted several state-law claims.
The district court granted the defendants’ Rule 12(b)(6)
motion on the ground that Maynard’s allegations failed to
establish that Price Realty had acted under “color of state law.”
See Morris v. Dearborne, 181 F.3d 657, 666 n.6 (5th Cir. 1999).
In his pro se appellate brief, Maynard has made no allegations to
suggest that Price Realty either acted under color of state law
or conspired with a state actor. See id.; Mills v. Criminal
Dist. Ct. No. 3, 837 F.2d 677, 678 (5th Cir. 1988). Maynard has
not made allegations sufficient to establish an employment-
discrimination claim under Title VII. See Shackelford v.
Deloitte & Touche, LLP, 190 F.3d 398, 403 (5th Cir. 1999).
Maynard has not explicitly argued that the court abused its
discretion by declining to exercise supplemental jurisdiction
over his state-law claims. See 28 U.S.C. § 1367(a), ©)(3);
Batiste v. Island Records, Inc., 179 F.3d 217, 226 (5th Cir.
1999).
Maynard’s appeal is without arguable merit, Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983), and his motion to proceed
No. 03-11339
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IFP on appeal is DENIED. We also DISMISS the appeal as
frivolous. 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 & n.24.
IFP DENIED; APPEAL DISMISSED.