Deloach v. Burdine

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 3, 2001
• Docket: 01-60495
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-60495 Summary Calendar

JOHN DELOACH,

Plaintiff-Appellant,

versus

RICHARD BURDINE, Attorney at Law,

Defendant-Appellee. -------------------------------------------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:01-CV-183-P --------------------------------------------------------- October 1, 2001

Before DAVIS, BENAVIDES and STEWART, Circuit Judges:

PER CURIAM:*

John Deloach, Mississippi prisoner # 49643, appeals the district court's dismissal of his pro

se and in forma pauperis ("IFP") 42 U.S.C. § 1983 complaint for failure to state a claim upon which

relief can be granted. Deloach's complaint named as the only defendant the att rney ret ained to o

represent him in a state criminal matter and sought damages against the defendant stemming from that

representation. On appeal, Deloach also argues that his state conviction was not supported by the

evidence and that relevant evidence was withheld by the state court. These arguments were not

raised in the district court and may not be raised for t he first time on appeal. See Leverette v.

Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Further, Deloach has filed a motion for

an order requiring the state court to produce documents. That motion is DENIED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The dist rict court did not err in determining that Deloach's complaint did not state claims

cognizable under 42 U.S.C. § 1983. See O'Brien v. Colbath, 465 F.2d 358 (5th Cir. 1972). The

defendant is not a state actor for purposes of 42 U.S.C. § 1983. See Polk County v. Dodson, 454

U.S. 312, 321-22, 325 (1981); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985); see also

O’Brien, 465 F.2d at 359 (noting that § 1983 was not intended as a vehicle for malpractice suits).

Inasmuch as the only claims asserted were against Deloach's retained counsel, the district court could

not grant relief to Deloach under 42 U.S.C. § 1983 even if his allegations were true, and thus the

complaint was properly dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii) (authorizing dismissal of IFP

complaint at any time for failure to state a claim upon which relief may be granted).

The district court's dismissal of Deloach's lawsuit for failure to state a claim upon which relief

may be granted counts as one strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Deloach is warned that if he accumulates three strikes

he will be barred from proceeding in forma pauperis in any civil action or appeal brought in a United

States court unless he is under imminent danger of serious physical injury. See § 1915(g).

AFFIRMED; MOTION DENIED; 28 U.S.C. § 1915(g) SANCTIONS WARNING ISSUED.