The opinion
Case: 13-50879 Document: 00512590137 Page: 1 Date Filed: 04/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50879 FILED
Summary Calendar April 9, 2014
Lyle W. Cayce
Clerk
LEOLA ADELENA STUART, on behalf of B. O. S., minor child, on behalf of
O. B. S., a minor child,
Plaintiff – Appellant
v.
CITY OF SAN ANTONIO; STATE OF TEXAS; BEXAR COUNTY DISTRICT
ATTORNEY; MARLENE J. STUART,
Defendants – Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:13-CV-439
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Pro se Appellant Leola Adelana Stuart appeals the denial of her request
for appointment of counsel and the dismissal of her lawsuit asserting violations
of her constitutional rights. In her complaint, Appellant claimed that Marlene
J. Stuart, the State of Texas, and the Bexar County District Attorney were
responsible for removing Appellant’s grandchildren from her home against her
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50879 Document: 00512590137 Page: 2 Date Filed: 04/09/2014
No. 13-50879
will. Appellant’s complaint also included various allegations against unnamed
San Antonio police officers. Appellant sought to proceed in forma pauperis
under 28 U.S.C. § 1915, and requested the appointment of counsel. The district
court referred this motion to the magistrate judge, who permitted Appellant to
proceed in forma pauperis, but denied the appointment of counsel. The
magistrate judge also prepared a thorough report recommending that
Appellant’s complaint be dismissed as factually frivolous under 28 U.S.C.
§ 1915(e)(2) and for failure to state a claim. The district court adopted the
magistrate’s report, and dismissed the case. Having little to add to the opinion
below, we now affirm.
This court reviews the dismissal of Appellant’s claims as frivolous for
abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992). The decision
regarding the appointment of counsel is also reviewed for abuse of discretion.
Culprit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). A dismissal for failure to state
a claim is reviewed de novo. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex
rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012).
The district court was well within its discretion to dismiss Appellant’s
claims as frivolous. Appellant’s complaint recites a series of seemingly
unconnected events that have happened to her since 1998. Although she
frequently refers to “Defendants,” she does not state which defendant is
responsible for each alleged harm. Further, Appellant’s complaint asserts no
grounds for jurisdiction against any defendant. Her complaint does not
identify the authority under which she seeks to represent her grandchildren,
or establish that she had legal custody over them in the first place. Appellant’s
allegations, taken together, are clearly baseless.
Appellant also fails to state a claim. Her claim against Marlene J. Stuart
fails because she does not allege that this Appellee, a non-state actor, engaged
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No. 13-50879
in an agreement with state actors to deprive Appellant of her constitutional
rights. Tebo v. Tebo, 550 F.3d 492, 496 (5th Cir. 2008). Her claim against the
City of San Antonio fails because she does not allege that the city caused a
constitutional tort through the execution of a policy or custom. Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 691 (1978). Her allegations against the State of
Texas fail because she has not established standing and because of state
sovereign immunity. Pennhurst State School and Hospital v. Haldermann,
465 U.S. 89, 100-01 (1984). Her claims against the Bexar County District
Attorney fail because she has not established standing and because of
prosecutorial immunity. Imbler v. Pachtman, 424 U.S. 409, 431 (1976).
We also agree that Appellant has not shown the “exceptional
circumstances” necessary to warrant the appointment of counsel. Cupit,
835 F.2d at 86. The appointment of counsel is dependent upon, inter alia, the
type and complexity of the case. Id. Appellant has not shown that her case was
factually or legally complex.
Accordingly, we AFFIRM.
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