Case: 12-20091 Document: 00511941644 Page: 1 Date Filed: 08/01/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 1, 2012
No. 12-20091
Summary Calendar Lyle W. Cayce
Clerk
WAYNE BINFORD,
Plaintiff-Appellant
v.
KATHRYN MARTEENY, P.C.,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-162
Before STEWART, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
Wayne Binford, Texas prisoner # 1368265, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous. Binford sued Kathryn
Marteeny, the attorney who represented Binford’s ex-wife during their divorce
proceeding, alleging that a letter Marteeny wrote to the Texas Board of Pardons
and Paroles (the Board) contained false accusations about him and caused the
Board to deny his release on parole. The district court dismissed Binford’s action
*
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should not be published and is not precedent except under the limited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: 12-20091 Document: 00511941644 Page: 2 Date Filed: 08/01/2012
No. 12-20091
as frivolous, citing 28 U.S.C. § 1915A(b)(1), because Marteeny was a private
actor not liable under § 1983.
A prisoner’s civil rights complaint is subject to dismissal if it is frivolous,
malicious, or fails to state a claim upon which relief may be granted.
§ 1915A(b)(1). We review the dismissal of a complaint under § 1915A(b)(1) de
novo. See Green v. Atkinson, 623 F.3d 278, 279 (5th Cir. 2010).
Binford argues that Marteeny acted under color of state law by proxy. He
contends that she sent the letter so that the Texas Department of Criminal
Justice (TDCJ) and the Board would subject Binford to cruel and unusual
punishment, including the denial of release on parole. Binford’s conclusory and
speculative allegations regarding Marteeny’s sending of the letter, the letter
itself, and the letter’s impact on either the TDCJ or the Board are insufficient
to establish that Marteeny’s conduct—sending the letter—is fairly attributable
to the State under any of the Supreme Court’s tests. See Priester v. Lowndes
County, 354 F.3d 414, 420 (5th Cir. 2004); Cornish v. Corr. Servs. Corp., 402 F.3d
545, 549-51 (5th Cir. 2005). Accordingly, the district court did not err when it
dismissed as frivolous Binford’s § 1983 complaint against Marteeny.
Binford’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983). Binford is cautioned that the
dismissal of his § 1983 complaint by the district court pursuant to § 1915A(b)(1)
and our dismissal of this appeal as frivolous pursuant to 5TH CIR. R. 42.2 both
count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 385-87 (5th Cir. 1996). Binford is also cautioned that if he accumulates
three strikes under § 1915(g), he may not 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
2