Jones v. State of Texas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 28, 2008
No. 07-50978
Summary Calendar Charles R. Fulbruge III
Clerk

CLEMENT DAVIS JONES

Plaintiff-Appellant

v.

STATE OF TEXAS; SUSAN REED, Chief District Attorney, Bexar County;
SHERIFF RALPH LOPEZ of Bexar County; MICHAEL VALICEK, Attorney;
SAMANTHA DIMAIO, Assistant District Attorney, Bexar County; SERGEANT
G D KUSCHEL, Officer, Houston Police Department

Defendants-Appellees

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:07-CV-539

Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Clement Davis Jones, Texas prisoner # 29054, seeks permission to proceed
in forma pauperis (IFP) to appeal the dismissal of his 42 U.S.C. § 1983 complaint
based on his failure to state a claim and on the defendants’ immunity. In filing
the IFP motion, Jones is challenging the district court’s certification decision

*
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should not be published and is not precedent except under the limited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.
 No. 07-50978

that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).
There is no merit to Jones’s argument that District Attorney Susan Reed
and Assistant District Attorney Samantha Dimaio forfeited their immunity
because they acted maliciously, intentionally, and in retaliation for his sex-
offender status. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Because Jones
does not address the district court’s reasons for dismissing his claims against
Sheriff Ralph Lopez, Michael Valicek, and Sergeant G. D. Kuschel, he has
abandoned any challenge to the dismissal of those defendants. Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993).
Jones’s appeal has no arguable merit, is frivolous, and is dismissed. 5th
Cir. R. 42.2; see Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The
dismissal by the district court of Jones's complaint and the dismissal of this
appeal as frivolous each count as a strike under 28 U.S.C. § 1915(g). Adepegba
v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Jones is cautioned that if he
accumulates three strikes under § 1915(g), he will not be allowed 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. § 1915(g).
Jones’s motion for appointment of counsel is denied.
MOTIONS DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.

2