Case: 12-41305 Document: 00512281739 Page: 1 Date Filed: 06/20/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 20, 2013
No. 12-41305
Summary Calendar Lyle W. Cayce
Clerk
DEWITT R. THOMAS,
Plaintiff-Appellant
v.
TWO RIVERS GROCERY & MARKET; KEITH LANGSTON,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 2:12-CV-205
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Dewitt R. Thomas moves for leave to proceed in forma pauperis (IFP) on
appeal from the district court’s dismissal of his civil rights action in which he
alleged that the defendants subjected him to religious discrimination, denied
him services based on his religion, and unlawfully restrained him in violation of
his rights under Amendments 1, 5, 7, and 14 of the United States Constitution,
as well as 42 U.S.C. §§ 1981 and 2000a. Thomas’s IFP motion is a challenge 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-41305
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).
Section 1915(e)(2) of Title 28 of the United States Code requires the
district court to dismiss an IFP case if it determines that the action is frivolous
or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant immune from such relief. In making the
§ 1915(e) determination, the district court properly considered the merits of
Thomas’s complaint.
Thomas asserts that he should have been permitted to amend his
complaint before dismissal. Thomas submitted an amended complaint outside
the time for amending as a matter of course, see FED. R. CIV. P. 15(a)(2), and then
only as an exhibit to a motion for enlargement of time to file a response to
defendant Langston’s motion to dismiss. The district court nonetheless
considered the response to the motion to dismiss and its exhibits in the court’s
review of the report and recommendation of the magistrate judge. The district
court concluded that the response and the motion to amend did nothing to cure
the defects of the complaint. In fact, the proposed amendment changed only the
relief requested and not the original allegations or bases for relief. Thus,
Thomas has not shown that the district court abused its discretion in its implicit
denial of leave to amend as futile. See FDIC v. Conner, 20 F.3d 1376, 1385 (5th
Cir. 1994); Norman v. Apache Corp., 19 F.3d 1017, 1021-22 (5th Cir. 1994);
Avatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 320 (5th Cir.
1991).
The district court specifically stated that it had considered Thomas’s
response to the motion to dismiss. The district court further stated that it
reviewed Thomas’s motions for reconsideration of the magistrate judge’s report,
which the district court construed as objections to the report. Thus, Thomas’s
assertion that the district court failed to consider his response and opposition to
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No. 12-41305
the magistrate judge’s report also presents no nonfrivolous issue for appeal. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (per curiam).
Thomas further avers that the district court clerk’s office engaged in
misconduct by refusing to file his response to the motion to dismiss based on an
error under the local rules and by failing to provide him timely a copy of the local
rules. The record and Thomas’s own documents indicate that his response was
untimely under the deadline set by the local rules or his own notice to the court
stating a deadline to which he had agreed with the defendants. Nonetheless, the
district court considered the response in its review of the magistrate judge’s
report and recommendation. Thomas has not alleged harm from the alleged
misconduct, other than his vague and conclusory assertion that it had a “huge
impact on his case in all areas.” He again fails to raise a nonfrivolous issue for
appeal. See Howard, 707 F.2d at 220.
Thomas’s appeal is without arguable merit and is frivolous. The IFP
motion is DENIED, and the appeal is DISMISSED. See Baugh, 117 F.3d at 202;
5TH CIR. R. 42.2
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