Jacques Hamilton v. Sally's Beauty Supplies ( 2013 )


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  •      Case: 13-40162      Document: 00512428425         Page: 1    Date Filed: 11/04/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 13-40162                              November 4, 2013
    Summary Calendar
    Lyle W. Cayce
    Clerk
    JACQUES TRENT HAMILTON,
    Plaintiff-Appellant
    v.
    SALLY’S BEAUTY SUPPLIES; HEATHER MESSER,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 6:13-CV-51
    Before OWEN, ELROD, and HAYNES, Circuit Judges.
    PER CURIAM: *
    Jacques Trent Hamilton, Texas prisoner # 1713684, moves to proceed in
    forma pauperis (IFP) to appeal the dismissal as frivolous and for failure to
    state a claim of his civil rights suit against Sally’s Beauty Supplies (Sally’s)
    and its owner, Heather Messer, seeking damages for false imprisonment,
    defamation of character, false accusation, harassment, and discrimination.
    The district court dismissed the suit pursuant to 28 U.S.C. § 1915A(b)(1)
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40162
    and (2), on the basis that Hamilton had not named a state actor as a defendant
    and had not alleged the deprivation of a federal right. The district court
    certified that the appeal had not been taken in good faith and denied Hamilton
    permission to proceed IFP.
    By moving to proceed IFP, Hamilton is challenging the district court’s
    certification that his appeal is not taken in good faith. 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; 5TH CIR. R. 42.2.
    When a district court dismisses a complaint as both frivolous and for
    failure to state a claim, as herein, our review is de novo. Geiger v. Jowers, 
    404 F.3d 371
    , 373 (5th Cir. 2005). With respect to failure to state a claim, “a
    complaint must contain sufficient factual matter, accepted as true, to state a
    claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678
    (2009) (internal quotation marks and citation omitted). A claim is facially
    plausible if the plaintiff pleads facts that allow a court “to draw the reasonable
    inference that the defendant is liable for the misconduct alleged.” 
    Id. “To plead
    a constitutional claim for relief under [42 U.S.C.] § 1983, [a
    plaintiff must] allege a violation of a right secured . . . by the Constitution or
    laws of the United States and a violation of that right by one or more state
    actors.” Johnson v. Dallas Indep. Sch. Dist., 
    38 F.3d 198
    , 200 (5th Cir. 1994).
    “For a nominally private individual’s conduct to meet the state action
    requirement, there must be such a sufficiently close relationship between the
    actor and the state that the actor can fairly be viewed as an agent of the state.”
    Howard Gault Co. v. Texas Rural Legal Aid, Inc., 
    848 F.2d 544
    , 552 (5th Cir.
    2
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    No. 13-40162
    1988).   The Supreme Court has set forth a two-part test for determining
    whether state action exists. Under the first part of the test, a court must
    determine whether the alleged constitutional deprivation has resulted from
    “‘the exercise of a right or privilege having its source in state authority.’” 
    Id. at 554
    (quoting Lugar v. Edmonson Oil Co., 
    457 U.S. 922
    , 937 (1982)). Under
    the second part of the test, the court must ascertain whether the private party
    may fairly be characterized as a “state actor” based on the facts specifically
    before the court.     
    Id. (internal quotation
    marks and citation omitted).
    Hamilton’s complaint contains no facts under which Sally’s can properly be
    characterized as a state actor, either in its own right or by its close association
    with the state. Cf. Morris v. Dillard Dep’t Stores, 
    277 F.3d 743
    , 749 (5th Cir.
    2001) (stating that a merchant will not be characterized as a state actor under
    § 1983 unless the conduct on the part of the guard or officer giving rise to the
    claimed deprivation was based solely on the merchant’s suspicion without an
    independent investigation by the officer). As such, Sally’s is not a state actor
    and has no § 1983 liability. See Polk County v. Dodson, 
    454 U.S. 312
    , 324-25
    (1981) (noting additionally that § 1983 will not support a claim based on a
    respondent superior theory of liability). Hamilton does not argue in his brief
    that Messer is a state actor; consequently, any such issue with regard to this
    defendant is waived. See Yohey v. Collins, 
    985 F.2d 222
    , 224-25 (5th Cir. 1993).
    Finally, in the event we hold the district court’s dismissal appropriate,
    Hamilton asks for permission to amend his complaint to name the State of
    Texas as a defendant in his false arrest and false imprisonment claims. Texas,
    however, is afforded Eleventh Amendment immunity from suit by an
    individual; therefore, any § 1983 claims against it would necessarily fail. See
    McCarthy ex rel. Travis v. Hawkins, 
    381 F.3d 407
    , 412 (5th Cir. 2004). As such,
    the district court did not abuse its discretion in not affording Hamilton the
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    No. 13-40162
    opportunity to amend his complaint, and he has shown no reason why the suit
    should not have been dismissed as frivolous and for failure to state a claim.
    See Eason v. Thaler, 
    14 F.3d 8
    , 9 (5th Cir. 1994).
    Hamilton’s appeal lacks arguable merit and is therefore frivolous.
    See 
    Howard, 707 F.2d at 220
    . Accordingly, his motion for leave to proceed
    IFP on appeal is denied, and his appeal is dismissed as frivolous. See 
    Baugh, 117 F.3d at 202
    n.24; 5TH CIR. R. 42.2.       The district court’s dismissal of
    Hamilton’s § 1983 complaint as frivolous and for failure to state a claim counts
    as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 
    103 F.3d 383
    , 387-88 (5th Cir. 1996). The dismissal of this appeal as frivolous also
    counts as a strike. See 
    id. Hamilton is
    warned that if he accumulates three
    strikes, he will not be able to proceed 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). His motion to expedite his
    appeal is DENIED.
    IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
    ISSUED.
    4