Hill v. Texas Department of Criminal Justice—Correctional Institutions Division ( 2016 )


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  •      Case: 15-20014      Document: 00513743394         Page: 1    Date Filed: 11/02/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-20014
    FILED
    November 2, 2016
    Summary Calendar
    Lyle W. Cayce
    Clerk
    KENNETH L. HILL,
    Plaintiff-Appellant
    v.
    THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONAL
    INSTITUTIONS DIVISION; MICHAEL EDISON; SHAWN JONDER;
    TONESHIA EZEH; JOYCE DICKERSON,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:14-CV-2045
    Before REAVLEY, OWEN, and ELROD, Circuit Judges.
    PER CURIAM: *
    Proceeding pro se and in forma pauperis (IFP), Kenneth L. Hill, Texas
    prisoner # 840441, filed a civil complaint in the district court alleging that
    prison officials had taken his property in violation of his various state and
    federal rights, that he had sought post-deprivation remedies in Texas state
    courts, and that each of the state courts in which he sought relief dismissed 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-20014     Document: 00513743394      Page: 2    Date Filed: 11/02/2016
    No. 15-20014
    action. He asked the district court to order the state appellate court to prepare
    an appellate record, and he generally argued that the claims he raised in the
    state courts were justiciable and meritorious. The district court dismissed the
    action for lack of jurisdiction to the extent that it sought mandamus relief.
    Otherwise, it construed the action as a 42 U.S.C. § 1983 complaint and
    dismissed it as frivolous pursuant to 28 U.S.C. § 1915A(b)(1). Hill now appeals.
    The district court correctly determined that it lacked authority to grant
    the mandamus relief sought by Hill, see Moye v. Clerk, DeKalb Cty. Superior
    Court, 
    474 F.2d 1275
    , 1276 (5th Cir. 1973), and Hill has abandoned any
    challenge to this jurisdictional ruling by failing to brief it on appeal, see Hughes
    v. Johnson, 
    191 F.3d 607
    , 613 (5th Cir. 1999); Yohey v. Collins, 
    985 F.2d 222
    ,
    225 (5th Cir. 1993); Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 
    813 F.2d 744
    , 748 (5th Cir. 1987).
    We review the dismissal of Hill’s § 1983 claims as frivolous for an abuse
    of discretion. Green v. Atkinson, 
    623 F.3d 278
    , 279-80 (5th Cir. 2010). A
    prisoner’s IFP complaint “may be dismissed as frivolous if it lacks an arguable
    basis in law or fact.” Siglar v. Hightower, 
    112 F.3d 191
    , 193 (5th Cir. 1997).
    This can occur where a complaint is “based on an indisputably meritless legal
    theory, such as if the complaint alleges the violation of a legal interest which
    clearly does not exist.” 
    Id. The district
    court did not abuse its discretion in
    dismissing Hill’s § 1983 claims as frivolous. See Hudson v. Palmer, 
    468 U.S. 517
    , 533 (1984); Parratt v. Taylor, 
    451 U.S. 527
    , 543-44 (1981); Murphy v.
    Collins, 
    26 F.3d 541
    , 543-44 (5th Cir. 1994); Marshall v. Norwood, 
    741 F.2d 761
    , 764 (5th Cir. 1984); TEX. GOV’T CODE ANN. § 501.007.
    Hill states as issues for consideration whether he should have been
    allowed to amend his pleadings and whether the district court inappropriately
    resolved genuine issues or applied erroneous legal conclusions. He provides no
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    Case: 15-20014    Document: 00513743394       Page: 3   Date Filed: 11/02/2016
    No. 15-20014
    discussion of those issues, however.        Because the issues are inadequately
    briefed, 
    Brinkmann, 813 F.2d at 748
    , they have been abandoned here.
    In his prayer for relief, Hill seeks a declaratory judgment that the district
    court and each of the state courts that have been involved in his post-
    deprivation actions have engaged in fraud.          Nothing in Hill’s pleadings
    provides a basis for such a scurrilous allegation. Hill’s request for declaratory
    relief is denied, and Hill is warned that any future filings containing
    inappropriate, scurrilous, abusive, or contumacious language concerning
    judicial personnel will be stricken and dismissed with prejudice.
    The judgment of the district court is affirmed.        The district court’s
    dismissal of Hill’s complaint as frivolous counts as a strike for purposes of 28
    U.S.C. § 1915(g). See Adepegba v. Hammons, 
    103 F.3d 383
    , 385-87 (5th Cir.
    1996). Hill has at least one other strike. See Hill v. Cruz, 261 F. App’x 757,
    757-58 (5th Cir. 2008). Hill is warned that, if he accumulates three strikes, he
    may not proceed IFP in any civil action or appeal filed while he is incarcerated
    unless he is under imminent danger of serious physical injury. See 
    Adepegba, 103 F.3d at 385-87
    .
    AFFIRMED; REQUEST FOR DECLARATORY RELIEF DENIED;
    SANCTION WARNING ISSUED.
    3