Christian v. Gourd

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2000
• Docket: 99-10823
• Status: Unpublished

Opinion

No. 99-10823 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10823 Conference Calendar

LARUE CHRISTIAN,

Plaintiff-Appellant,

versus

VERA GOURD, Dallas Police Department; JOHN HALEY, Dallas Police Department; BENNIE R. CLICK, Dallas Police Department,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:98-CV-1239-H -------------------- April 12, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

LaRue Christian, Texas prisoner # 523046, has filed a motion

for leave to proceed in forma pauperis (“IFP”) on appeal,

following the district court’s granting of summary judgment in

favor of the defendants and denial of his 42 U.S.C. § 1983 civil

rights action. By moving for IFP status, Christian is

challenging the district court’s certification that IFP status

should not be granted on appeal because his appeal presents no

nonfrivolous issues and is not taken in good faith. See Baugh v.

Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-10823 -2-

Christian argues that the district court did not give him an

opportunity to conduct discovery and to litigate his claims. The

district court did not abuse its discretion in staying discovery

to enable the defendants to assert qualified immunity defenses.

See Siegert v. Gilley, 500 U.S. 226, 231 (1991).

Christian argues the district court signed the defendants’

proposed findings and order without giving him notice and an

opportunity to respond; however, he does not explain which

proposed findings the district court allegedly adopted without

giving him notice. Because Christian received notice of the

magistrate judge’s report and recommendation and an opportunity

to file objections, he has not shown that the district court

adopted the defendants’ proposed findings or entered judgment

without giving him notice or an opportunity to respond.

Christian argues that he made a jury demand and that the

district court violated his due process rights by not giving him

a jury trial. Christian was not denied his right to a jury trial

because the district court determined that there were no genuine

issues of material fact for which a jury trial would be needed.

See, e.g., Odum v. Penn. Mut. Life Ins. Co., 288 F.2d 744, 748

(5th Cir. 1961).

Christian argues that the district court did not give him

notice that service of process intended for Haley was returned

unexecuted until he received the district court’s order

dismissing his claim against Haley. Because the appellate record

does not contain the summons which was returned unexecuted, it is

not possible to determine whether Christian received notice that No. 99-10823 -3-

the summons was not served on Haley. However, the district

court’s judgment may be affirmed on the alternative ground that

Christian’s claims against Haley lacked merit. See United States

v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995). Christian has

not shown that he has a liberty interest in the requested

information, and Section 552.027 of the Texas Government Code

negates any liberty interest he may have had in the requested

information. Therefore, he has not shown that Haley violated his

due process rights in denying his request for a copy of his

police report. See Geter v. Fortenberry, 849 F.2d 1550, 1556

(5th Cir. 1988) (plaintiff can obtain relief under § 1983 only

when his federal statutory or constitutional rights are

violated); see also Tarka v. Franklin, 891 F.2d 102 (5th Cir.

1989)(court denied plaintiff’s due process and § 1983 claims for

defendant’s refusal to provide access to his student records and

concluded that plaintiff was not entitled to the records because

he was not a student under Family Educational Rights and Privacy

Act).

Because Christian has not shown that he will raise a

nonfrivolous issue on appeal, his IFP motion is DENIED and his

appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202

n.24; 5th Cir. R. 42.2.

Christian is cautioned that this court’s dismissal of his

appeal counts as a “strike” under § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Christian is

further cautioned that if he accumulates three “strikes” under

§ 1915(g), he will not be able to proceed IFP in any civil action No. 99-10823 -4-

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).

IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION

WARNING ISSUED.