Tracy Nixon v. Greg Abbott

Case: 14-10262 Document: 00512891380 Page: 1 Date Filed: 01/06/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 14-10262
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
January 6, 2015
TRACY NIXON,
Lyle W. Cayce
Clerk
Plaintiff-Appellant

v.

GREG ABBOTT, Attorney General of the State of Texas,

Defendant-Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13:CV-3807

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Non-prisoner pro se litigant Tracy Nixon moves for leave to proceed in
forma pauperis (IFP) on appeal from the dismissal of the 42 U.S.C. § 1983
complaint pursuant to 28 U.S.C. § 1915(e)(2). The district court determined
that Nixon had failed to allege facts showing Texas Attorney General Greg
Abbott’s personal involvement in the alleged violation of Nixon’s constitutional
rights and had not identified any official policy or custom resulting in a denial

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10262 Document: 00512891380 Page: 2 Date Filed: 01/06/2015

No. 14-10262

of Nixon’s constitutional rights. The district court further determined that
defendant Assistant Attorney General Gabriela Bendslev was absolutely
immune from liability in connection with her prosecution of the enforcement of
Nixon’s child support obligation. The district court also denied Nixon’s request
for the imposition of sanctions against Abbott. Further, finding that Nixon had
persisted in filing frivolous pleadings despite receiving sanction warnings, the
district court imposed restrictions on Nixon’s future IFP filings.
The district court denied Nixon leave to proceed IFP on appeal and
certified that this appeal was not taken in good faith. By moving to proceed
IFP here, Nixon is challenging the district court’s certification decision. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into Nixon’s
good faith “is limited to whether the appeal involves legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citation omitted). Review of the
dismissal of the claims is de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir
2005).
Nixon’s arguments that the district court erred in not entering a default
judgment, in precluding discovery and sanctions against Abbott, and in not
conducting a jury trial are without merit because the district court was
authorized to dismiss the IFP civil suit “at any time” based on a determination
that the action was frivolous or did not state a claim upon which relief may be
granted, or sought monetary relief from an immune defendant. § 1915(e)(2)(B).
Contrary to Nixon’s argument, he was given the opportunity to amend his
complaint in his responses to the magistrate judge’s questionnaire, which has
been recognized as an acceptable method for a pro se litigant to develop the
factual basis for his complaint. See Watson v. Ault, 525 F.2d 886, 892 (5th Cir.
1976). Regarding Nixon’s assertion that the district court failed to support the

2
 Case: 14-10262 Document: 00512891380 Page: 3 Date Filed: 01/06/2015

No. 14-10262

dismissal with factual findings and legal conclusions, the district court
conducted a de novo review of the portions of record addressed in Nixon’s
objections, and then adopted the findings and recommendations of the
magistrate judge. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 52(a)(1), (4).
Secondly, Nixon argues that he was protected from incarceration by the
Texas Constitution and his pending bankruptcy proceeding and that Abbott
and Bendslev violated his constitutional rights by enforcing the child support
order and having him found in contempt. Even assuming that Abbott had some
personal participation in bringing the contempt proceeding, Nixon has failed
to state an arguable basis for a constitutional claim against Abbott or
Bendslev.
Prosecutors are absolutely immune from liability under § 1983 for their
commencement and presentation of criminal cases on the State’s behalf. Burns
v. Reed, 500 U.S. 478, 486 (1991) (citations omitted). Under Texas law, the
Office of the Attorney General has been designated to provide child support
enforcement functions and services required by the Social Security Act. Smith
v. Abbott, 311 S.W.3d 62, 68 (Tex. Ct. App. 2010); TEX. FAM. CODE ANN.
§ 231.001; 42 U.S.C. § 651. Nixon was prosecuted for contempt under these
provisions. See Nixon v. The Office of Attorney General of Texas, 2013 WL
4781535 *1 (Tex. Ct. App 2013). The Texas law provides for incarceration of a
party found in contempt for failure to comply with an enforcement order. TEX.
FAM. CODE ANN. § 157.166. The Attorney’s General’s Office is also authorized
to recommend the suspension of a state license held by a child support obligor
if it is determined that the obligor owes three months or more of child support
and has failed to comply with the repayment schedule. Smith, 311 S.W.3d at
68. Thus, the appellees did not engage in ultra vires or unconstitutional acts
in filing a motion for contempt in the trial court to enforce the child support

3
 Case: 14-10262 Document: 00512891380 Page: 4 Date Filed: 01/06/2015

No. 14-10262

obligation which resulted in the trial court ordering Nixon’s incarceration and
the suspension of his licenses, See Nixon, 2013 WL 4781535 *1 (Tex. Ct. App
2013). These acts were performed within the scope of the prosecutorial
functions of the appellees and, thus, absolute immunity applies. Cousin v.
Small, 325 F.3d 627, 632 (5th Cir. 2003). Nixon’s claims against Abbott and
Bendslev have no arguable merit.
Nixon has not challenged the district court’s restrictions on his future
filings in his brief and thus, he has abandoned that issue on appeal. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Nixon’s appeal is without arguable merit and therefore frivolous. See
Howard, 707 F.2d at 219-20. Accordingly, his motion to proceed IFP on appeal
is denied, and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202
& n.24; 5th Cir. R. 42.2. Nixon is warned that future frivolous filings will invite
the imposition of sanctions, which may include monetary sanctions or
restrictions on his ability to file pleadings in this court or any court subject to
this court’s jurisdiction. His motion to expedite the appeal is denied.
DENY MOTION TO EXPEDITE APPEAL; IFP MOTION DENIED;
APPEAL DISMISSED; SANCTION WARNING ISSUED.

4