Phillip Harvey v. Bexar County Sheriff's Dept, et ( 2018 )

Case: 18-50202 Document: 00514742647 Page: 1 Date Filed: 11/30/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50202 FILED
November 30, 2018
Lyle W. Cayce
PHILLIP HARVEY, Clerk
Plaintiff - Appellant
v.
BEXAR COUNTY SHERIFF’S DEPARTMENT; SHERIFF SUSAN
PAMERLEAU; SHERIFF JAVIER SALAZAR,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CV-87
Before OWEN, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM: *
Phillip Harvey, Bexar County inmate # 894357, moves for leave to
proceed in forma pauperis (IFP) on appeal. He filed a 42 U.S.C. § 1983
complaint against the Bexar County Sheriff’s Department and the current and
former sheriffs, alleging that he was wrongfully detained for 26 months on a
charge of aggravated sexual assault that was ultimately dismissed. The
district court dismissed the action sua sponte under 28 U.S.C. § 1915(e)(2)(B)
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50202
and 28 U.S.C. § 1915A(b) for failure to raise a nonfrivolous claim and for filing
suit against immune defendants. The court also ruled that Harvey’s appeal
was not taken in good faith in light of the reasons given in the order of
dismissal.
By moving to proceed IFP, Harvey is challenging the district court’s
good-faith certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Our inquiry into an appellant’s good faith “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) (internal quotation marks
and citation omitted). We may dismiss the appeal if it is frivolous. See Baugh,
117 F.3d at 202 n.24.
In his appellate brief, Harvey focuses on his financial eligibility to
proceed IFP, which is not “directed solely to the trial court’s reasons for the
certification decision.” Id. at 202. His notice of appeal, however, raises
challenges to his detention and to alleged misdeeds occurring during the
pendency of the criminal charges. Because Harvey had been indicted, probable
cause existed to support the detention. See Smith v. Gonzales, 670 F.2d 522,
526 (5th Cir. 1982). His contention that he is entitled to compensation for his
wrongful detention under state law does not allege a violation of a right secured
by the Constitution or laws of the United States, as required under § 1983. See
Southwestern Bell Tel. LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008).
To the extent that Harvey has presented claims against the Sheriff’s
Department, he has not alleged or put forth evidence to show that his detention
was the result of a policy or custom of that municipality division. See McKinney
v. Irving Indep. Sch. Dist., 309 F.3d 308, 312 (5th Cir. 2002). To the extent
that Harvey seeks to assert that he should have been given an opportunity to
amend his complaint to add claims against the trial judge, the prosecutor, or
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No. 18-50202
his appointed attorneys for failing to obtain an earlier dismissal of the charges
or for not reducing his bond, any effort to do so would have been futile. See
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Mireles v. Waco, 502 U.S. 9,
11-12 (1991) (judicial immunity); Polk Cty. v. Dodson, 454 U.S. 312, 317-18
(1981) (holding that appointed defense attorneys are not state actors when
engaged in traditional actions in representing their clients); Imbler v.
Pachtman, 424 U.S. 409, 431 (1976) (prosecutorial immunity).
The appeal is without arguable merit and is thus frivolous. Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it
is dismissed. See 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous
counts as a strike under § 1915(g), as does the district court’s dismissal of
Harvey’s complaint. See Adepegba v. Hammons, 103 F.3d 383, 385-87-88 (5th
Cir. 1996). Harvey previously accumulated a strike. See Harvey v. Bexar Cty.,
Tex., No. 5:15-CV-386 (W.D. Tex. July 20, 2015) (unpublished). Because
Harvey has now accumulated three strikes, he is barred from proceeding in
forma pauperis 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.” § 1915(g).
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C.
§ 1915(g) BAR IMPOSED.
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