Benny Montgomery v. Dyland Hale , 648 F. App'x 444 ( 2016 )

Case: 15-50742 Document: 00513507019 Page: 1 Date Filed: 05/16/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-50742
Fifth Circuit
FILED
May 16, 2016
Lyle W. Cayce
BENNY MONTGOMERY, Clerk
Plaintiff–Appellant,
versus
DYLAND HALE, Tactics Officers, Midland Police Department;
B.J. LAND, Lieutenant Supervisor, Midland Police Department;
CARLOS PIZANO, Police Officer, Midland Police Department;
DOMINGUEZ, Police Officer, Midland Police Department,
Defendants–Appellees.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:15-CV-106
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
Benny Montgomery, Texas prisoner # 1589407, moves for leave to
proceed in forma pauperis (“IFP”) following the dismissal of his 42 U.S.C.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50742 Document: 00513507019 Page: 2 Date Filed: 05/16/2016
No. 15-50742
§ 1983 complaint alleging that members of the Midland Police Department
used excessive force in a 2008 arrest. The district court sua sponte dismissed
the complaint under 28 U.S.C. §§ 1915(e) and 1915A based on a determination
that it was not timely filed. See, e.g., Gartrell v. Gaylor, 981 F.2d 254, 256 (5th
Cir. 1993). We construe Montgomery’s motion as a challenge to the district
court’s certification that the appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). We must determine “whether the
appeal involves legal points arguable on their merits (and therefore not frivo-
lous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation
marks and citation omitted).
Assuming, arguendo, that Montgomery was denied a fair opportunity to
establish equitable tolling in the district court, we grant the motion for IFP,
but we dispense with further briefing and affirm. Texas’s equitable-tolling
principles control. See Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998).
Texas courts sparingly apply equitable tolling and look, inter alia, to
whether a plaintiff diligently pursued his rights. See Hand v. Stevens Transp.,
Inc. Emp. Benefit Plan, 83 S.W.3d 286, 293 (Tex. App.―Dallas 2002, no pet.).
Montgomery does not cite any state precedent to show that Texas has applied
equitable tolling in circumstances similar to those he alleges. Moreover, even
if federal equitable-tolling principles are considered, “attorney negligence,
however styled, does not provide a basis for equitable tolling.” Holland v. Flor-
ida, 560 U.S. 645, (2010); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96
(1990). Montgomery’s suggestion of intentional deception by his attorney is
entirely conclusional and is thus insufficient to support a claim for equitable
tolling. See, e.g., United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2003).
Furthermore, Montgomery has not shown a diligent pursuit of his rights. See
Hand, 83 S.W.3d at 293.
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Case: 15-50742 Document: 00513507019 Page: 3 Date Filed: 05/16/2016
No. 15-50742
The dismissal of the complaint as frivolous counts as a strike under
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir.
1996). Montgomery is advised that if he accumulates three strikes, he will not
be able to proceed IFP in any civil action or appeal while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).
The motion to proceed IFP is GRANTED. The judgment is AFFIRMED.
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