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Daniel Roberts v. Bexar County Sheriff's Dept, et
687 F. App'x 392
| 5th Cir. | 2017
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*2 Before JONES, SMITH, and DENNIS, Circuit Judges.

PER CURIAM: [*]

Daniel A. Roberts moves for leave to proceed in forma pauperis (IFP) in his appeal of the district court’s dismissal of his civil rights lawsuit under 28 U.S.C. § 1915(e)(2)(B) and denial of his motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). He also moves to “remove [his] case from queue for 45 days in order to facilitate the submission and acceptance of a corrected brief with accurate ROA numbers,” but we deny this request as unnecessary as we have been able to decipher the record citations in Roberts’s brief.

The district court certified that the appeal was not taken in good faith for several reasons, including those set forth in its order dismissing the case and denying Rule 59(e) relief. Thus, the district court’s certification decision is inextricably intertwined with the merits of the case, to which we now turn. See Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997).

We review the § 1915(e)(2)(B)(ii) dismissal under the same de novo standard that governs review of a dismissal under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren , 134 F.3d 732, 733-34 (5th Cir. 1998). Despite Roberts’s arguments for a more favorable standard, we are bound to apply the plausibility standard described in Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).

Roberts argues that Detective Jesus Ochoa applied for and received a “facially invalid” warrant for Roberts’s arrest after telling Roberts that there was no evidence that Roberts had committed a crime. However, Roberts’s pleadings failed to allege any statements that Ochoa made to obtain the warrant or explain what made it “facially invalid.” The mere allegation that the detective had previously told Roberts that there was no evidence against him is not sufficient. Roberts’s complaint “stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal , 556 U.S. at 678. To the extent that Roberts argues that Detective Ochoa obtained the warrant in retaliation for Roberts’s allegations of misconduct, his failure to identify the allegations made in the warrant application means that he cannot show any arguable error in the district court’s dismissal for failure to state a claim for relief. See Hand v. Gary , 838 F.2d 1420, 1427-28 (5th Cir. 1988); Smith v. Gonzales , 670 F.2d 522, 526 (5th Cir. 1982); Davis v. West , 433 S.W.3d 101, 111 (Tex. App. 2014).

As for the denial of Roberts’s motion to amend his complaint, he fails to show an arguable abuse of discretion given his failures to cure the deficiencies in his pleadings despite ample opportunity to do so and given that the proposed amendment would not have cured the relevant deficiencies. See Marucci Sports, L.L.C. v. NCAA , 751 F.3d 368, 378 (5th Cir. 2014).

Thus, Roberts fails to show that his appeal involves legal points arguable on their merits. Howard v. King , 707 F.3d 215, 220 (5th Cir. 1983). We deny his IFP motion and dismiss the appeal as frivolous under Fifth Circuit Rule 42.2. Baugh , 117 F.3d at 202 & n.24. We warn Roberts that future frivolous filings will invite the imposition of sanctions, which may include dismissal, monetary sanctions, and restrictions on his ability to file pleadings in this court and any court subject to this court’s jurisdiction, and that he should review any pending appeals and actions and move to dismiss any that are frivolous. See Coghlan v. Starkey , 852 F.2d 806, 817 n.21 (5th Cir. 1988).

MOTIONS DENIED; APPEALS DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

[*] Pursuant to 5 TH C IR . 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 5 TH C IR . R. 47.5.4.

Case Details

Case Name: Daniel Roberts v. Bexar County Sheriff's Dept, et
Court Name: Court of Appeals for the Fifth Circuit
Date Published: Apr 25, 2017
Citation: 687 F. App'x 392
Docket Number: 14-51244 Summary Calendar
Court Abbreviation: 5th Cir.
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