Fred Martinez v. State Bar of Texas

Case: 18-50930 Document: 00515335660 Page: 1 Date Filed: 03/06/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 18-50930 March 6, 2020

Lyle W. Cayce

FRED G. MARTINEZ, Clerk

Plaintiff-Appellant

v.

THE STATE BAR OF TEXAS; CRAIG CHARLTON, Senior Investigator;

STEPHANIE STROLLE, Assistant Disciplinary Counsel; JOSEPH

ACEVEDO, State Bar Member,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:18-CV-945

Before DENNIS, WILLETT, and DUNCAN, Circuit Judges.

PER CURIAM: *

Fred G. Martinez, Texas prisoner # 2061834, moves for leave to proceed

in forma pauperis (IFP) in this appeal of the dismissal of his 42 U.S.C. § 1983

complaint. The motion is a challenge to the district court’s certification that

the appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202

(5th Cir. 1997).

* 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. 18-50930

In his complaint, Martinez maintained that after he filed a grievance

with the State Bar of Texas against Joseph Acevedo, his attorney in criminal

proceedings, employees of the State Bar and Acevedo breached a contract by

requesting and obtaining multiple continuances, by permitting Acevedo to file

an untimely response to Martinez’s grievance, and by taking the response into

consideration in determining that Martinez’s complaint was without merit. He

maintains that these actions constituted a denial of due process and interfered

with his First Amendment right to petition for the redress of grievances. The

district court dismissed the case pursuant to 28 U.S.C. § 1915(e)(2) and

28 U.S.C. § 1915A(b) as frivolous, for failing to state a claim, and for seeking

relief against immune defendants. Martinez contends that his claims warrant

relief because he sought declaratory and injunctive relief against the

defendants in their official capacities, because the defendants are not entitled

to qualified immunity, because the breach of contract and failure to follow state

rules violated his constitutional rights, and because his trial counsel conspired

with the State Bar employees to violate his rights.

The district court found that the doctrine of sovereign immunity barred

only Martinez’s damage claims against the defendants in their official

capacities. The court did not find that the defendants were entitled to qualified

immunity on Martinez’s claims against them in their individual capacities; it

instead ruled that Martinez had suffered no injury as a result of the procedure

used to consider his bar grievance and that his trial attorney was not a state

actor for § 1983 purposes.

Martinez is unable to show that the consideration of his bar grievance

“produce[d] erroneous or unreliable results [that] imperil[ed] a protected

liberty or property interest.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.

1997). He has not established that he had a cognizable interest in the

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No. 18-50930

procedures used to consider his bar grievance or in the ultimate outcome of the

proceedings. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)

(holding that a private citizen generally does not have a cognizable interest in

the decision to prosecute a third party); Myers v. Klevenhagen, 97 F.3d 91, 94

(5th Cir. 1996) (noting that a failure to follow prison rules in addressing

grievances does not create a civil rights claim). We need not accept Martinez’s

conclusional assertion that a failure to consider Acevedo’s response to his

grievance would necessarily have resulted in a finding of professional

misconduct, which would necessarily have led to the grant of a new trial on the

basis of ineffective assistance. See Gentilello v. Rege, 627 F.3d 540, 544 (5th

Cir. 2010). With respect to Martinez’s First Amendment claim, he was able to

petition the State by filing a grievance with the State Bar; the Constitution

does not require the State to take any particular action in response. See Smith

v. Ark. St. Hwy. Emp., Local 1315, 441 U.S. 463, 465 (1979). As for Martinez’s

assertion that Acevedo conspired with employees of the State Bar, he has not

established that these individuals were motivated to discriminate against him

on a protected basis or that he was deprived of a constitutional right. See Miss.

Women’s Med Clinic v. McMillan, 866 F.2d 788, 793 (5th Cir. 1989).

Because Martinez did not allege “a claim to relief that is plausible on its

face,” the district court properly dismissed his complaint. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). He

has not established that he will present a nonfrivolous issue on appeal. See

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion for

leave to proceed IFP is denied and the appeal is dismissed as frivolous. See

Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. Martinez’s motion for

appointment of counsel should therefore be denied.

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The district court’s dismissal of the complaint as frivolous and for failure

to state a claim counts as one strike under 28 U.S.C. § 1915(g), as does the

dismissal of this appeal as frivolous. See Adepegba v. Hammons, 103 F.3d 383,

387-88 (5th Cir. 1996), abrogated in part on other grounds by Coleman v.

Tollefson, 575 U.S. 532 (2015). Martinez is cautioned that if he accumulates

three strikes, he will no longer be allowed to 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;

MOTION FOR APPOINTMENT OF COUNSEL DENIED; SANCTION

WARNING ISSUED.

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