Robert Back v. UTMB-Corrtl Mge Hlthcare
16-50440
5th Cir.May 9, 2017Background
- Robert Back, a Texas prisoner, appealed the dismissal of his civil-rights complaint and moved for leave to proceed in forma pauperis (IFP).
- Back alleged that Dr. Steven Bowers (and the University of Texas Medical Branch) submitted a perjurious affidavit in Back’s prior federal civil action.
- The challenged statement was a single sentence in a five-page affidavit that the court viewed as an opinion on the merits rather than a factual assertion.
- The district court dismissed Back’s complaint under 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim, and certified the appeal was not taken in good faith.
- The Fifth Circuit reviewed the dismissal de novo and concluded Back failed to identify any violated federal right; it denied IFP and dismissed the appeal as frivolous.
- The district court dismissal and this appeal count as strikes under 28 U.S.C. § 1915(g); combined with a prior frivolous-dismissal strike, Back now has three strikes and cannot proceed IFP while incarcerated absent imminent danger.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal under § 1915(e)(2)(B) was proper | Back: affidavit contained perjurious factual statement giving rise to a claim | Court/Defendants: statement is an opinion on the merits, not a factual violation of federal rights | Dismissal affirmed as frivolous and for failure to state a claim |
| Whether Back identified a federal right violated by the alleged perjury | Back: perjury in prior federal action violated his rights and warrants relief | Defendants: no identifiable federal right pleaded; claim is conclusory | Back failed to state a cognizable federal claim |
| Whether the district court improperly relied on a Rule 12(b)(6) ground without considering extra-pleading materials | Back: district court improperly granted 12(b)(6) without affidavits/evidence | Court: if extra-pleading materials were considered, the motion would convert to Rule 56 per Fed. R. Civ. P. 12(d) | No error in dismissal under § 1915(e)(2)(B); conversion issue not reached |
| Proper forum for civil-contempt sanctions | Back: seeks contempt sanctions in this action | Defendants/Court: contempt must be sought in the original action where the allegedly false affidavit was filed | Contempt must be pursued in the original action |
Key Cases Cited
- Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997) (standard on good-faith appeal certification)
- Samford v. Dretke, 562 F.3d 674 (5th Cir. 2009) (de novo review of § 1915(e)(2)(B) dismissals)
- Doe v. Rains Cty. Indep. Sch. Dist., 66 F.3d 1402 (5th Cir. 1995) (frivolous pleading analysis)
- Gompers v. Buck’s Stove & Range Co., 221 U.S. 418 (1911) (forum for contempt remedies)
- Coleman v. Tollefson, 135 S. Ct. 1759 (2015) (strikes under § 1915(g))
- Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996) (application of § 1915(g) strikes)
- Howard v. King, 707 F.2d 215 (5th Cir. 1983) (appeal good-faith standard)