Dupree v. Mfume , 112 F. App'x 367 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 9, 2004
Charles R. Fulbruge III
Clerk
No. 03-11290
Summary Calendar
BYRON BERNARD DUPREE,
Plaintiff-Appellant,
versus
KWESI MFUME; NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE,
Defendants-Appellees.
United States District Court
for the Northern District of Texas
(3:03-CV-2240-L)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Byron Bernard Dupree, Texas inmate # 828005, moves pro se for
leave to proceed in forma pauperis (IFP) in his appeal of the
dismissal of his 42 U.S.C. § 1983 complaint as frivolous. Dupree’s
IFP motion is a challenge to the district court’s certification
that his appeal was not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). In his complaint, Dupree
alleged that the National Association for the Advancement of
Colored People (NAACP) and its president, Kwesi Mfume, violated his
*
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this opinion should not be published and is not precedent except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.
civil rights by refusing to provide him with legal representation
to challenge his conviction and resulting incarceration on a drug
charge.
This court reviews the dismissal of a complaint as frivolous
for abuse of discretion. Taylor v. Johnson, 257 F.3d 470, 472 (5th
Cir. 2001). A complaint is frivolous if it lacks “an arguable
basis in law or fact”. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999). The district court did not err in dismissing Dupree’s
complaint. Neither the NAACP, a private organization, nor Mfume,
a private citizen, is a state actor. Rendell-Baker v. Kohn, 457
U.S. 830, 838 (1982); Yeager v. City of McGregor, 980 F.2d 337, 339
(5th Cir.), cert. denied, 510 U.S. 821 (1993).
Dupree’s appeal lacks arguable merit, and the district court
did not err in finding it was not taken in good faith. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly,
Dupree’s motion for leave to proceed IFP on appeal is DENIED, and
his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2. The dismissal of Dupree’s appeal as
frivolous counts as a “strike” for the purposes of 28 U.S.C.
§ 1915(g), as does the district court’s dismissal as frivolous of
his 42 U.S.C. § 1983 complaint. See Adepegba v. Hammons, 103 F.3d
383, 387 (5th Cir. 1996). We CAUTION Dupree that once he
accumulates three strikes, he may not proceed IFP in any civil
action or appeal filed while he is incarcerated or detained in any
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facility unless he is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED
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