Dietrick Johnson, Sr. v. City of Dallas , 678 F. App'x 216 ( 2017 )

Case: 15-10942 Document: 00513892246 Page: 1 Date Filed: 03/01/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-10942 FILED
March 1, 2017
Lyle W. Cayce
DIETRICK LEWIS JOHNSON, SR., Clerk
Plaintiff-Appellant
v.
CITY OF DALLAS; DALLAS POLICE DEPARTMENT; UNITED STATES
MARSHALS, Fugitive Task Force; AUTO POUND NET, Dallas Police
Impound,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CV-4015
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Dietrick Lewis Johnson, federal prisoner # 19831-078, is serving a 20-
year sentence for carjacking. Raising claims arising from his arrest for that
crime, Johnson filed the instant civil rights action under 42 U.S.C. § 1983 and
Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971). He named as
defendants the City of Dallas, the Dallas Police Department (DPD), the United
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-10942 Document: 00513892246 Page: 2 Date Filed: 03/01/2017
No. 15-10942
States Marshal Service (USMS), the DPD’s auto impoundment unit, and the
Collin County Sheriff’s Office. He alleged that sheriff’s deputies and the USMS
unlawfully searched his apartment and that, after his arrest, they left his
apartment unsecured, thus allowing all of his possessions to be stolen from it.
He further alleged that the DPD unlawfully searched and impounded his truck
and that the DPD’s auto impoundment unit gave the truck away to some
unidentified person three days after his arrest.
By moving to appeal in forma pauperis (IFP), Johnson challenges the
district court’s certification that his appeal is not in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). His IFP request “must be directed
solely to the trial court’s reasons for the certification decision,” id., and our
inquiry “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) (citation omitted). We may dismiss the appeal if it is apparent
that it would be meritless. Baugh, 117 F.3d at 202 & n.24; see 5TH CIR. R. 42.2.
Johnson offers only a bare recitation of his claims, without reference to
any legal authorities. By failing to address any of the district court’s reasons
for dismissal and certification, he has abandoned any issue crucial to his
appeal and IFP motion. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
In particular, there is no disputing that Johnson’s claims about the
disposition of his truck were raised and rejected in a prior § 1983 action and
may not be relitigated now. See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th
Cir. 1998); Nilsen v. City of Moss Point, 701 F.2d 556, 561 (5th Cir. 1983). In
addition, Johnson does not challenge the determination that the sheriff’s office
lacks the capacity to be sued under § 1983. See Darby v. Pasadena Police Dep’t,
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No. 15-10942
939 F.2d 311, 313-14 (5th Cir. 1991). He also does not challenge the ruling
that the USMS may not be sued under Bivens, which provides a cause of action
only against individuals but not federal agencies. See FDIC v. Meyer, 510 U.S.
471, 484-86 (1994).
Because Johnson fails to show that his appeal involves any nonfrivolous
issue, his IFP motion is DENIED, and this appeal is DISMISSED AS
FRIVOLOUS. See Howard, 707 F.2d at 220; Baugh, 117 F.3d at 202 & n.24;
5TH CIR. R. 42.2.
Two of Johnson’s prior pro se civil rights actions have been dismissed as
frivolous or for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b). Those dismissals count as two strikes under § 1915(g). See
Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015) The district court’s
dismissal in the instant case, and the dismissal of this appeal also count as
strikes, giving Johnson a total of four strikes. See id. Accordingly, Johnson is
BARRED from proceeding IFP 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 § 1915(g).
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