Glover v. Lopez ( 2022 )

Case: 21-40734 Document: 00516290485 Page: 1 Date Filed: 04/22/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 22, 2022
No. 21-40734 Lyle W. Cayce
Clerk
DeIra Glover,
Plaintiff—Appellant,
versus
Brenda Lopez, Sergeant, Combes Police Department, Individually and
Official Capacity; Eloy Cano, Justice of the Peace, Precinct 5, 2,
Individually and Official Capacity; Fabian Limas, Criminal Law Hearing
Officer, Individually and Official Capacity; Cameron County, Texas,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:21-CV-107
Before Jones, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Pretrial detainee DeIra Glover, Cameron County, Texas, inmate
# 281552, seeks leave to proceed in forma pauperis (IFP) on appeal from the
dismissal of his 42 U.S.C. § 1983 lawsuit for failure to state a claim, pursuant
*
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opinion should not be published and is not precedent except under the limited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: 21-40734 Document: 00516290485 Page: 2 Date Filed: 04/22/2022
No. 21-40734
to 28 U.S.C. § 1915A, and denial of his Federal Rule of Civil Procedure 59(e)
motion. By such motion, Glover is challenging the district court’s
certification that any appeal would not be taken in good faith because, for the
reasons relied upon in the order of dismissal, he will not present
a nonfrivolous appellate issue. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997).
Before this court, Glover asserts that he is financially eligible to
proceed IFP, and he conclusionally renews his assertion that the bail imposed
was excessive and violative of his due process rights. He abandons by failing
to brief any argument renewing his claim that the arresting officer erred in
failing to give notice of the complaint against him prior to his arrest. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). With respect to his
excessive bail claim, he has abandoned by failing to brief any meaningful
appellate challenge to the district court’s determination that his allegations
did not give rise to a constitutional claim. See id.; Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); see also Fed.
R. App. P. 28(a)(8). To the extent that he asserts that the judges who set
his bail failed to follow state law and guidelines, such claim does not give rise
to a cognizable § 1983 claim. See Lefall v. Dallas Indep. Sch. Dist., 28 F.3d
521, 525 (5th Cir. 1994). Inasmuch as he complains that the judge who denied
bail failed to state reasons for the denial, the district court found that the
reasons were included in the written bail orders. Further, even if additional
reasons were required, the court found such reasons to be implicit in the
record as Glover was facing at least 32 separate felony charges related to
sexual misconduct with children. Glover briefs no argument challenging that
finding. See Yohey, 985 F.2d at 224-25.
If his IFP motion is very liberally construed, Glover additionally
asserts that the justice of the peace who signed his arrest warrants never
properly assumed his role as a magistrate and that the criminal court thus
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No. 21-40734
lacks jurisdiction over him. This court will not consider the claim as it was
raised for the first time in his Rule 59(e) motion. See U.S. Bank Nat. Ass’n v.
Verizon Commc’ns, Inc., 761 F.3d 409, 426 (5th Cir. 2014). Similarly,
Glover’s claim that he was denied a second bail hearing on expanded charges
in one of his pending criminal proceedings will not be considered as it was
raised for the first time in his third proposed amended complaint, and he fails
to demonstrate that the district court abused its discretion in implicitly
denying his Federal Rule of Civil Procedure 15(a)(2) motion to amend. See
Simmons v. Sabine River Auth. La., 732 F.3d 469, 477-78 (5th Cir. 2013); see
also In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007);
Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
The appeal is without arguable merit and is thus frivolous. See Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983). Because the appeal is frivolous,
the motion to proceed IFP is DENIED, and the appeal is DISMISSED.
See Baugh, 117 F.3d at 202 & n.24; 5th Cir. R. 42.2.
The district court’s dismissal of the complaint for failure to state
a claim and the dismissal as frivolous of this appeal each count as a strike
under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996),
abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S. 532, 537
(2015). Glover is WARNED that if he accumulates three strikes, he will no
longer be allowed 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 28 U.S.C. § 1915(g).
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