Kenneth Hill v. TDCJ-Corrtl Institutions Div, et a , 670 F. App'x 275 ( 2016 )

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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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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.
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