The opinion
Case: 17-11180 Document: 00514416393 Page: 1 Date Filed: 04/05/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-11180 FILED
April 5, 2018
Lyle W. Cayce
JOSEPH WAYNE HUNTER,
Clerk
Plaintiff-Appellant
v.
OFFICER M. JAMES; DALLAS COUNTY SHERIFF DEPARTMENT,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CV-1817
Before DAVIS, CLEMENT, and OWEN, 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
grant of summary judgment dismissal of his 42 U.S.C. § 1983 complaint under
28 U.S.C. §§ 1915A, 1915(e)(2)(B), in which he alleged that his constitutional
rights were violated after a traffic stop by an off-duty officer. The district court
denied Hunter’s IFP motion and certified that the appeal was not taken in good
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11180
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).
Hunter has not challenged the district court’s dismissal of his claims
against the Dallas police officers who arrested him or the State of Texas.
Further, although he states that the district court abused its discretion with
respect to his claim against the Dallas County Sheriff’s Office for “over
detention,” he offers no argument. These issues are therefore abandoned.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Hunter’s argument that the district court erred in granting summary
judgment for Officer James based on his qualified immunity is unavailing.
Hunter had the burden of rebutting James’s defense by establishing a genuine
issue as to whether James’s alleged wrongful conduct violated clearly
established law. See Hanks v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017).
James’s uncontradicted summary judgment evidence shows that James’s role
was limited to a traffic stop, James reasonably suspected that Hunter was
operating his vehicle illegally, and the traffic stop was justified. See United
States v. Pack, 612 F.3d 341, 349-50 (5th Cir.), opinion modified on denial of
reh’g, 622 F.3d 383 (5th Cir. 2010). Thus, James was entitled to summary
judgment in his favor based on his qualified immunity. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009); Hanks, 853 F.3d at 744.
Hunter’s argument that the district court erred when it dismissed his
claim against District Attorney Craig Watkins for failure to state a claim is
also unavailing. Watkins is absolutely immune from § 1983 immunity with
respect to Hunter’s speedy trial claim. See Imbler v. Pachtman, 424 U.S. 409,
431 (1976); Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994). Further, Hunter’s
vague and conclusory allegation that Watkins failed to train prosecutors
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properly does not suffice to state a claim for relief under § 1983. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009); Hale v. Harney, 786 F.2d 688, 690 (5th Cir.
1986).
Last, Hunter’s claim that the district court abused its discretion when it
denied his motions for the appointment of counsel is without merit given that
he failed to show that his case was factually complex or that he was incapable
of adequately presenting it. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
Cir. 1982); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
Hunter has failed to show that his appeal involves any arguably
meritorious issue and is frivolous. See Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983); see also Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
Hunter is warned that if he accumulates three strikes, 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).
IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS;
SANCTION WARNING ISSUED.
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