Case: 14-20041 Document: 00512845476 Page: 1 Date Filed: 11/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20041 FILED
Summary Calendar November 21, 2014
Lyle W. Cayce
Clerk
DAVID JAMES,
Plaintiff-Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ADMINISTRATORS OF
ACCESS TO COURTS; ATTORNEY GENERAL OF THE STATE OF TEXAS;
JUDICIAL OFFICERS OF THE STATE OF TEXAS,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-1927
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
David James, Texas prisoner # 1251548, appeals a judgment dismissing
his 42 U.S.C. § 1983 complaint for failure to state a claim under 28 U.S.C.
§ 1915(e)(2). James alleged that Texas prison officials and employees and
other state officials violated his right of access to the courts by failing to provide
him with access to an adequate law library or a person trained in the law to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20041 Document: 00512845476 Page: 2 Date Filed: 11/21/2014
No. 14-20041
assist him in filing his original state habeas application in 2007. He also
claimed that state court officials violated his right of access to the courts by
refusing to consider and address on the merits the claims set forth in his
subsequent state habeas application.
We apply de novo review to a prisoner’s action dismissed for failure to
state a claim. Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011). We have
reviewed the record and James’s brief and agree with the dismissal for failure
to state a claim, as James does not show that his ability to pursue a
nonfrivolous legal claim was hindered by any actions of the defendants while
he was imprisoned in the Jester IV Unit of the Texas Department of Criminal
Justice. See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Krause v.
Thaler, 637 F.3d 558, 561 (5th Cir. 2011). Further, in his brief to this court,
James does not challenge the determination that his claim based on the state
court’s recent dismissal of his subsequent state habeas application lacked
merit. Johnson thus abandons this issue by failing to adequately brief it. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
The district court dismissed James’s complaint with prejudice for failure
to state a claim pursuant to § 1915(e)(2)(B)(ii). James argues that the district
court erred in dismissing his claims without providing him an opportunity to
amend and without first serving his complaint on the defendants and hearing
an answer from them. A district court, however, may dismiss a prisoner’s in
forma pauperis action at any time after properly determining that the action
fails to state a claim, even prior to service of process. See 28 U.S.C.
§§ 1915(e)(2) & 1915A. Further, James was given an opportunity to cure the
inadequacies in his pleading through the district court’s use of a questionnaire
in the nature of a motion for more definite statement. See Eason v. Thaler,
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No. 14-20041
14 F.3d 8, 9 (5th Cir. 1994). Therefore, he cannot show that the district court
abused its discretion in dismissing his complaint with prejudice.
James also seeks appointment of counsel on appeal. His case does not
present exceptional circumstances warranting the appointment of counsel. See
Cooper v. Sheriff, Lubbock Cnty., Texas, 929 F.2d 1078, 1084 (5th Cir. 1991).
Accordingly, his motion for appointment of counsel is DENIED.
The judgment of the district court is AFFIRMED. Additionally, the
following requests set forth in James’s brief are DENIED AS MOOT: (1) that
this court issue a declaratory judgment instructing the state courts to not treat
his pending state habeas application as successive; (2) that this court order the
defendants to pay and/or refund his filing fees; (3) that this court order the
state courts to appoint a neurologist for James and to hold an evidentiary
hearing at which Dr. Harry Bonnell can testify; and (4) that this court stay the
motion for authorization filed in Case No. 13-20679.
The district court’s dismissal of James’s complaint counts as a strike for
purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996). James is WARNED that if he accumulates three strikes, he will no
longer be allowed to proceed in forma pauperis in any civil action or appeal
filed while he is incarcerated or detained in any facility unless he is in
imminent danger of serious physical injury. See § 1915(g).
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