Nieto v. Durbin
21-50934
5th Cir.Apr 13, 2022Background
- Raul Nieto, a federal prisoner, filed a pro se Bivens suit against a U.S. Attorney, an Assistant U.S. Attorney, an ATF agent, and a DHS agent, alleging malicious prosecution and wrongful arrest/imprisonment.
- Nieto stated he was housed at the Cross Point Halfway House when he filed the complaint.
- The district court dismissed the complaint with prejudice under 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1), concluding that (1) Heck v. Humphrey barred the claims because success would call his conviction into question, and (2) the claims were time-barred under Texas’s two-year statute of limitations.
- The district court denied Nieto leave to proceed in forma pauperis (IFP) on appeal, certifying the appeal was not taken in good faith under § 1915(a)(3).
- Nieto did not brief or challenge the district court’s rulings on appeal; the Fifth Circuit found he abandoned the issues, deemed the appeal frivolous, denied IFP, and dismissed the appeal.
- The court warned Nieto that the district-court dismissal counts as a strike under 28 U.S.C. § 1915(g) (because he was incarcerated when he filed), but the frivolous-appeal dismissal did not count as a strike (because he was not incarcerated when he filed the notice of appeal).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal is taken in good faith / IFP on appeal | Nieto sought IFP; did not argue merits on appeal | District court: appeal not in good faith because claims frivolous | Appeal frivolous; IFP on appeal denied |
| Whether Bivens claims are barred by Heck v. Humphrey | Nieto alleges wrongful prosecution/imprisonment (seeks damages) | Heck bars claims that would implicate validity of conviction | District court concluded Heck bar; Nieto did not challenge on appeal; ruling stands |
| Whether claims are time-barred under Texas two-year statute | Nieto did not contest timeliness on appeal | District court: claims barred by Texas limitations period | Time-bar ruling affirmed by abandonment on appeal |
| Whether appellant abandoned issues and effect on § 1915(g) strikes | Nieto offered no appellate briefing on critical issues | Defendants/court: failure to brief = abandonment; strike rules apply | Issues abandoned; appeal frivolous; district-court dismissal counts as a § 1915(g) strike; appeal dismissal does not |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognizes damages action against federal officers for constitutional violations)
- Heck v. Humphrey, 512 U.S. 477 (1994) (bars damages claims that would necessarily imply invalidity of a conviction or sentence)
- Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997) (standards for certifying appeals not taken in good faith and IFP appeals)
- Howard v. King, 707 F.2d 215 (5th Cir. 1983) (good-faith inquiry limited to whether appeal presents legal points arguable on the merits)
- Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996) (inmate status for § 1915(g) strike analysis includes halfway-house confinement)
- Gay v. Texas Dep’t of Corrections, 117 F.3d 240 (5th Cir. 1997) (clarifies when dismissals count as § 1915(g) strikes and IFP considerations)
- Grant v. Cuellar, 59 F.3d 523 (5th Cir. 1995) (pro se litigants must still brief issues and comply with appellate rules)
- Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744 (5th Cir. 1987) (failure to identify error equals abandonment on appeal)