Searcy v. Abbott ( 2021 )

Case: 20-50231 Document: 00515923070 Page: 1 Date Filed: 07/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 1, 2021
No. 20-50231
Lyle W. Cayce
Summary Calendar Clerk
Harvey Lelane Searcy, Harvey Lee Lane Searcy sui juris,
Plaintiff—Appellant,
versus
Greg Abbott, Governor of the State of Texas, in his individual and official
capacities; Jane Doe, in her individual and official capacities; Cynthia
D. Tilley, in her individual and official capacities; John Doe, in his
individual and official capacities; Tabitha S. Robinson, in her
individual and official capacities,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CV-684
Before Higginbotham, Smith, and Oldham, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50231 Document: 00515923070 Page: 2 Date Filed: 07/01/2021
No. 20-50231
Harvey Lelane Searcy, Texas prisoner # 2031801, moves this court for
leave to appeal in forma pauperis (IFP) from the dismissal of a civil action in
which he made numerous assertions arising from the confiscation of Uniform
Commercial Code (UCC) materials he used in an attempt to obtain money
and a pardon from Texas Governor Greg Abbott. By moving to appeal IFP,
Searcy challenges the district court’s certification that his appeal is not in
good faith. See McGarrah v. Alford, 783 F.3d 584, 584 (5th Cir. 2015). “An
appeal is taken in good faith if it raises legal points that are arguable on the
merits and thus nonfrivolous.” Id. We may dismiss a frivolous appeal. Id.; see
5th Cir. R. 42.2.
The district court dismissed the case under Federal Rule of Civil
Procedure 41(b) after Searcy refused to pay the filing fee or to file a proper
IFP motion. A Rule 41(b) dismissal is proper “where there is a clear record
of delay or contumacious conduct by the plaintiff and when lesser sanctions
would not serve the best interests of justice.” Nottingham v. Warden, 837 F.3d
438, 440 (5th Cir. 2016) (internal quotation marks and citation omitted).
Searcy’s actions in the district court were intentional, contumacious,
insubordinate, and attributable to him alone. See id.; Berry v. CIGNA/RSI-
CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). He attempted to pay the fee with
a fictional “Simple Bond”—a piece of paper he said was worth $400. After
he was warned of potential dismissal because his payment was not valid, he
again refused to pay or to file a proper IFP motion unless the district court
favored him with additional reasons for rejecting his facially invalid payment
attempt. Moreover, he insulted the impartiality and integrity of the district
judge and even purported to take action against the judge through additional
bogus UCC pleadings. Nothing suggests that a lesser sanction would have
been effective.
In this court, Searcy asserts that the district judge was biased and
should have recused himself, that the district court’s written reasons were
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Case: 20-50231 Document: 00515923070 Page: 3 Date Filed: 07/01/2021
No. 20-50231
inadequate, and that Federal Rule of Appellate Procedure 24(a)(3) does not
apply to him. The bias claim is frivolous because it is based solely on the
district court’s adverse rulings rather than an external factor. See United
States v. Scroggins, 485 F.3d 824, 830 (5th Cir. 2007). The complaint about
the lack of a written ruling is baseless because the court provided written
reasons that notified Searcy why his appeal would not be in good faith.
Further, Searcy misconstrues Rule 24, under which he was ineligible to
proceed IFP without prior authorization. See Fed. R. App. P. 24(a)(3)(A).
Because Searcy has failed to show a nonfrivolous issue for appeal
concerning the dismissal under Rule 41(b), his motion for leave to appeal IFP
will be denied. See McGarrah, 783 F.3d at 584-85. Because the appeal is
without arguable merit, it is dismissed as frivolous. See id.; 5th Cir.
R. 42.2. This dismissal counts as a strike under 28 U.S.C. § 1915(g). See
Coleman v. Tollefson, 575 U.S. 532, 537 (2015). Searcy is warned that, if he
accumulates a total of three strikes, he will be 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).
IFP DENIED; appeal DISMISSED AS FRIVOLOUS;
STRIKE IMPOSED; three-strikes WARNING ISSUED.
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