Case: 17-20120 Document: 00514247800 Page: 1 Date Filed: 11/22/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20120 FILED
Summary Calendar November 22, 2017
Lyle W. Cayce
Clerk
COLLINS O. NYABWA,
Plaintiff-Appellant
v.
CORRECTIONS CORPORATION OF AMERICA (CCA),
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-3792
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Collins O. Nyabwa has moved for leave to proceed in forma pauperis
(IFP). He seeks to appeal the district court’s dismissal of his complaint as
frivolous and malicious under 28 U.S.C. § 1915(e)(2)(B)(i). In that complaint,
Nyabwa alleged that the Corrections Corporation of America (CCA) falsely
imprisoned him at a federal immigration detention center pending deportation
proceedings that were based on his three Texas convictions for improper
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20120
photography. After his deportation proceedings were terminated and he was
released from detention, the Texas Court of Criminal Appeals held in an
unrelated case that the improper photography statute was unconstitutional.
See Ex parte Thompson, 442 S.W.3d 325, 351 (Tex. Crim. App. 2014). In this
case, the district court determined that Nyabwa’s claims were legally frivolous
and that his complaint was also malicious because he repeated allegations that
had been rejected in a previous civil action. The district court denied Nyabwa
leave to proceed IFP because it certified that his appeal was not taken in good
faith.
By moving for leave to proceed IFP on appeal, Nyabwa challenges the
district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into his 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). Nyabwa’s motion
for leave to file a supplemental brief on appeal is GRANTED.
Nyabwa has not shown that the district court abused its discretion by
dismissing his complaint as frivolous or malicious. See Ruiz v. United States,
160 F.3d 273, 274-75 (5th Cir. 1998). He has not shown how his citation to the
actual-innocence prong of the test set forth in Reyes-Requena v. United States,
243 F.3d 893, 900-04 (5th Cir. 2001), is relevant in this context. Nyabwa is not
entitled to relief under 28 U.S.C. §§ 1495 and 2513 because those statutes
“come into play only after a defendant has succeeded in overturning his federal
conviction and is seeking damages for wrongful conviction.” Freeman v.
Johnson, 79 F. App’x 3, 3 (5th Cir. 2003). The district court’s dismissal of
Nyabwa’s false imprisonment claim under Texas state law is supported by
relevant law. See Wal-Mart Stores, Inc v. Resendez, 962 S.W.2d 539, 540 (Tex.
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No. 17-20120
1998); Pete v. Metcalfe, 8 F.3d 214, 218-19 (5th Cir. 1993); James v. Brown,
637 S.W.2d 914, 918 (Tex. 1982). We also find no support for his argument in
Nelson v. Colorado, 137 S. Ct. 1249 (2017). The reason is that the case did not
involve a claim of false imprisonment. Furthermore, examination of his
complaint in this appeal and his prior complaint dismissed in Nyabwa v.
Corrections Corporation of America, No. 4:16-cv-1644 (S.D. Tex. Feb. 1, 2017),
supports the district court’s dismissal of his current complaint as malicious.
See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988).
Nyabwa is correct that, because his complaint invoked both 42 U.S.C. §
1983 and diversity jurisdiction under 28 U.S.C. § 1332(a), the district court
should have considered his claims in light of diversity jurisdiction, instead of
focusing solely on § 1983. However, because his underlying claims lack merit
even if considered under diversity jurisdiction, there was no reversible error.
See Longoria v. Schneider, 96 F.3d 1442, 1996 WL 511752, *1 (5th Cir. 1996)
(unpublished); Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).
Accordingly, Nyabwa has failed to show an error in the district court’s
certification decision and has not established that he will raise a nonfrivolous
issue on appeal. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220.
Nyabwa’s motion for leave to proceed IFP is DENIED, and his appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R.
42.2.
Nyabwa is CAUTIONED that future frivolous, repetitive, or otherwise
abusive filings will result in the imposition of sanctions, including dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court
or any court subject to this court’s jurisdiction. He should review any pending
appeals and actions and move to dismiss any that are frivolous, repetitive, or
otherwise abusive.
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