Case: 20-10301 Document: 00515905577 Page: 1 Date Filed: 06/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-10301 June 18, 2021
Lyle W. Cayce
Clerk
Joseph Wayne Hunter,
Plaintiff—Appellant,
versus
Douglas Hugh Schopmeyer, Attorney of Law; Kathleen
Walsh, Public Defender; Katherine A. Drew, Public Defender;
Jennifer Bennett, Judge; Faith Johnson, Dallas County District
Attorney; Gracie E. Shin, Assistant District Attorney,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-1589
Before Stewart, Graves, and Higginson, Circuit Judges.
Per Curiam:*
Joseph Wayne Hunter, Texas prisoner # 1981619, has filed a motion
for leave to proceed in forma pauperis (IFP) on appeal from the district
court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10301 Document: 00515905577 Page: 2 Date Filed: 06/18/2021
No. 20-10301
§§ 1915A and 1915(e)(2)(B). In his complaint, which Hunter was granted
leave to amend on multiple occasions, Hunter alleged that his state trial
counsel, a state court judge, a district attorney, an assistant district attorney,
and others engaged in fraud and conspiracy and deprived him of various
constitutional rights in connection with his underlying state court criminal
proceedings, appeal, and postconviction proceedings. The district court
denied Hunter’s IFP motion and certified that the appeal was not taken in
good faith.
By moving for IFP status, Hunter is challenging the district court’s
certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our
inquiry into an appellant’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 citations omitted).
The district court found that Hunter’s conspiracy, fraud, and related
claims against the state court judge were barred by judicial immunity and that
his federal and state law claims against the district attorney and assistant
district attorney were barred by prosecutorial immunity. Additionally, the
district court found that Hunter’s allegations against his trial counsel failed
to state a claim for fraud or conspiracy, failed to show that counsel was acting
under color of state law, and that his claims asserting violations of 18 U.S.C.
§§ 241 and 242 were not cognizable because those criminal statutes did not
create a private right of action. His claims against appellate counsel were
dismissed because he did not establish that they were acting under color of
state law.
In his IFP motion, Hunter does not adequately address the district
court’s reasons for dismissing his claims but simply restates the claims he
raised in his various pleadings filed in the district court. Thus, Hunter has
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No. 20-10301
effectively abandoned all available arguments for appeal. See Brinkmann v.
Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Because
Hunter has otherwise failed to present any coherent nonfrivolous argument
showing that he would be entitled to relief under § 1983 or any other statutory
provision, see Howard, 707 F.2d at 220, his motion to proceed IFP on appeal
is DENIED and his appeal is DISMISSED AS FRIVOLOUS.
The dismissal of this appeal as frivolous counts as a strike under 28
U.S.C. § 1915(g). See Coleman v. Tollefson, 575 U.S. 532, 535-39 (2015).
Hunter has previously received two strikes under 28 U.S.C. § 1915(g). See
Hunter v. James, 717 F. App’x 500, 501 (5th Cir. 2018); Hunter v. Pitre, 3:17-
CV-1093 (N.D. Tex. July 2, 2020). Because Hunter now has at least three
strikes, he is BARRED from proceeding IFP in any civil action or appeal
filed in a court of the United States while he is incarcerated or detained in
any facility unless he is under imminent danger of serious physical injury. See
§ 1915(g). He is WARNED that any pending or future frivolous or repetitive
filings in this court or any court subject to this court’s jurisdiction may
subject him to additional sanctions, and he is directed to review all pending
matters and move to dismiss any that are frivolous, repetitive, or otherwise
abusive.
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