Sam Jones v. Sharon Knight , 558 F. App'x 486 ( 2014 )

Case: 13-11061 Document: 00512568306 Page: 1 Date Filed: 03/20/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-11061 March 20, 2014
Lyle W. Cayce
SAM JONES, Clerk
Plaintiff-Appellant
v.
SHARON KNIGHT, TDCJ Parole Officer; DAN BAILEY, TDCJ Parole Officer;
DETECTIVE ADAMS, Cedar Hill Police Officer; TOMMY PHILLIPS, TDCJ
Parole Officer,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-1511
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Sam Jones, Texas prisoner # 1787475, moves for the appointment of
counsel and leave to proceed in forma pauperis (IFP) on appeal from the
dismissal of his 42 U.S.C. § 1983 complaint. In his complaint, Jones alleged
that his rights under the Fourth Amendment, the Fourteenth Amendment, the
Due Process Clause, and state law were violated because the defendants
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-11061 Document: 00512568306 Page: 2 Date Filed: 03/20/2014
No. 13-11061
maliciously prosecuted him by initiating a criminal proceeding against him in
bad faith, which resulted in his indictment for failing to meet his obligation as
a registered sex offender to report his change of address in person to the local
law enforcement authority. He also asserted state law claims that the
defendants engaged in the intentional infliction of emotional distress.
Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the district court
dismissed his federal claims as frivolous or for failure to state a claim upon
which relief may be granted. The district court declined to exercise
supplemental jurisdiction over his state law claims and dismissed his state law
claims without prejudice. The district court further denied Jones leave to
proceed IFP on appeal, certifying that his appeal was not taken in good faith.
By moving to proceed IFP here, Jones is challenging the district court’s
certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Jones contends that the criminal proceeding was initiated against him
due to his parole officers’ failure to fax his address change to the Dallas Police
Department and the defendants’ subsequent cover up of that failure. Jones
also argues that one of the defendants, Detective Adams, presented falsified
evidence to the grand jury making it appear that Jones was required to register
as a sex offender every 90 days instead of annually.
In Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) (en banc), we
held that “‘malicious prosecution’ standing alone is no violation of the United
States Constitution, and that to proceed under 42 U.S.C. § 1983 such a claim
must rest upon a denial of rights secured under federal and not state law.” We
recognized, however, that “[t]he initiation of criminal charges without probable
cause may set in force events that run afoul of explicit constitutional
protection—the Fourth Amendment if the accused is seized and arrested, for
example.” Id. at 953.
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Case: 13-11061 Document: 00512568306 Page: 3 Date Filed: 03/20/2014
No. 13-11061
Even if Jones’s allegations were construed as pleading a Fourth
Amendment claim of false arrest or unreasonable seizure, his arguments fail
to raise a nonfrivolous issue regarding the absence of probable cause for his
arrest, a necessary component of such claims. See Cuadra v. Houston Indep.
Sch. Dist., 626 F.3d 808, 812-13 (5th Cir. 2010). A grand jury indicted Jones
for failing to report his intended address change “in person” to the Dallas Police
Department before he moved and failing to report his address change “in
person” to the Cedar Hill Police Department after he moved to the Cedar Hill
jurisdiction. Those charges were based on grounds that are not implicated by
Jones’s arguments about the fax of his address change and Adams’s portrayal
of how often Jones was required to register as a sex offender. See TEX. CODE
CRIM. PROC. art. 62.055(a). Jones’s arguments do not raise a nonfrivolous issue
for appeal. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
The instant appeal is without arguable merit and is dismissed as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. The district
court’s dismissal of Jones’s § 1983 suit and our dismissal of this appeal as
frivolous both count as strikes for purposes of § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Jones is cautioned that if he
accumulates three strikes under § 1915(g), he may not 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).
MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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