Case: 13-20378 Document: 00512633508 Page: 1 Date Filed: 05/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-20378
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 16, 2014
GLENN RAY PALMER,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
DISTRICT CLERK CHRIS DANIEL
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-723
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Glenn Ray Palmer, Texas prisoner # 1747722, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C § 1915A(b)(1)
for failure to state a claim. Palmer alleged that Chris Daniel, the Clerk of the
Harris County District Court, denied him access to the courts. He argues that
Daniel failed to transmit his habeas application to the Texas Court of Criminal
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-20378
Appeals in accord with the time limitations in Texas Code of Criminal
Procedure article 11.07. He seeks declaratory relief and damages.
We review the dismissal of a complaint for failure to state a claim under
the same de novo standard of review applicable to dismissals made pursuant
to Federal Rule of Civil Procedure 12(b)(6). In re Katrina Canal Breaches
Litigation, 495 F.3d 191, 205 (5th Cir. 2007). “[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).
The right of access to the courts only encompasses a reasonably adequate
opportunity to file nonfrivolous legal claims challenging convictions or
conditions of confinement. Johnson v. Rodriguez, 110 F.3d 299, 310-11 (5th
Cir. 1997). Further, an inmate must demonstrate a relevant, actual injury
stemming from the defendant’s alleged unconstitutional conduct. Brewster v.
Dretke, 587 F.3d 764, 769, (5th Cir. 2009).
Texas Code of Criminal Procedure article 11.07 reflects that the
transmittal of a habeas application to the appellate court is dependent upon
the directions of the convicting court. The district court properly took judicial
notice of the public record in determining that the state district court had
designated controverted material issues for resolution with respect to both of
Palmer’s applications and that it had not directed the clerk to transmit the
records to the Texas Court of Criminal Appeals. See Norris v. Hearst Trust,
500 F.3d 454, 461 n.9 (5th Cir. 2007). Daniel acted in accord with the
provisions of article 11.07 and the directions of the convicting state court and
did not deny Palmer access to the appellate court in violation of his
constitutional rights. Further, the record reflects that Palmer’s habeas
applications remain pending before the state court. Thus, Palmer has not
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Case: 13-20378 Document: 00512633508 Page: 3 Date Filed: 05/16/2014
No. 13-20378
shown that he was precluded from filing his applications or that he has
sustained any actual prejudice in the habeas proceedings. He has failed to
state a claim for the denial of access to the courts. See Brewster, 587 F.3d at
769.
The district court’s dismissal of Palmer’s civil complaint 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). Palmer is
CAUTIONED 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).
Palmer’s motion for appointment of counsel is DENIED. See Ulmer v.
Chancellor, 691 F.2d 209, 212, 213 (5th Cir. 1982).
The district court’s dismissal of the complaint is AFFIRMED.
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