Richard Miller v. Edith Clement
704 F. App'x 398
| 5th Cir. | 2017Background
- Richard N. Miller, a Louisiana prisoner, appealed the district court’s partial dismissal of his 42 U.S.C. § 1983 suit (some claims dismissed as frivolous, some for failure to state a claim, and some defendants afforded immunity).
- On appeal Miller sought a stay and for the first time alleged Fifth and Fourteenth Amendment violations (obstruction of justice, malfeasance, witness tampering) and Eighth Amendment claims for being given a toxic psychotropic drug.
- Miller also raised new claims against the clerk of the Fifth Circuit and two clerk’s office employees for the first time on appeal.
- The Fifth Circuit refused to consider new legal theories raised first on appeal absent extraordinary circumstances and found none present; it denied Miller’s motion to stay.
- Miller’s brief failed to identify errors in the district court’s rulings; the court treated that as abandonment of any challenge and dismissed the appeal in part as frivolous.
- The court warned that the frivolous dismissal counts as a strike under 28 U.S.C. § 1915(g) and treated Miller’s habeas-seeking claims as an unauthorized successive § 2254; the court declined to remand for a COA determination as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consideration of new claims raised on appeal | Miller argued new constitutional violations and additional defendants should be considered | Appellees (and court practice) argued new theories cannot be considered absent extraordinary circumstances | New claims raised first on appeal rejected; no extraordinary circumstances shown |
| Motion to stay pending criminal investigation | Miller requested stay until U.S. Attorney investigates alleged prosecutorial misconduct/witness tampering | Opposing view: no basis for stay; procedural rules control | Motion to stay denied |
| Adequacy of appellant’s brief/challenge to district court | Miller reasserted claims but did not identify district court errors | Respondents relied on rule that failure to brief issues constitutes abandonment | Court found abandonment; dismissed appeal in part as frivolous |
| Sanctioning / 1915(g) strike and habeas issue | Miller contested dismissals and sought relief potentially in habeas | Court treated some relief as successive § 2254 and applied strike rule | Frivolous dismissal counted as a strike under § 1915(g); successive habeas dismissed; no COA remand |
Key Cases Cited
- Black v. N. Panola Sch. Dist., 461 F.3d 584 (5th Cir. 2006) (courts generally refuse to consider new issues raised first on appeal absent extraordinary circumstances)
- Conley v. Board of Trs. of Grenada Cnty. Hosp., 707 F.2d 175 (5th Cir. 1983) (same principle regarding new issues on appeal)
- Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993) (failure to brief an issue on appeal constitutes abandonment)
- Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744 (5th Cir. 1987) (same rule on appellate abandonment for pro se litigants)
- Coleman v. Tollefson, 135 S. Ct. 1759 (2015) (frivolous dismissal can count as a strike under § 1915(g))
- Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996) (discussing strikes under the PLRA and standards for frivolity)
- United States v. Alvarez, 210 F.3d 309 (5th Cir. 2000) (remand for certificate of appealability may be futile)