Filed: Mar. 20, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 20, 2006 Charles R. Fulbruge III Clerk No. 05-40972 Summary Calendar BILLY RELL MILES, Plaintiff-Appellant, versus JAMES ZELLER; DOUG DRETKE, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:04-CV-509 Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges. PER CURIAM:* Billy Rell Miles, Texas prisoner # 695744, ap
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 20, 2006 Charles R. Fulbruge III Clerk No. 05-40972 Summary Calendar BILLY RELL MILES, Plaintiff-Appellant, versus JAMES ZELLER; DOUG DRETKE, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:04-CV-509 Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges. PER CURIAM:* Billy Rell Miles, Texas prisoner # 695744, app..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40972
Summary Calendar
BILLY RELL MILES,
Plaintiff-Appellant,
versus
JAMES ZELLER; DOUG DRETKE,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CV-509
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Billy Rell Miles, Texas prisoner # 695744, appeals from the
dismissal of his 42 U.S.C. § 1983 complaint as time-barred and, in
the alternative, as frivolous and for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii). He makes the
following arguments: (1) the two-year limitations period for filing
his section 1983 complaint was equitably tolled during the period
*
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opinion should not be published and is not precedent except under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.
he sought relief in Texas state court; (2) the district court erred
in dismissing the complaint as frivolous and for failure to state
a claim; (3) he was denied an evidentiary hearing; and (4) the
district court erroneously deemed the defendants immune from
monetary relief.
There is no Texas or federal authority to suggest that Miles
could not have filed a section 1983 suit if he did not first
exhaust his state court remedies. Therefore, the pendency of his
Texas state lawsuit does not merit equitable tolling since it
sought a remedy that he need not have pursued. Cf. Holmes v. Texas
A&M Univ., 145 F.3d 681, 684-85 (5th Cir. 1998).
Miles argues that his complaint should not have been dismissed
as frivolous because he had paid a portion of the filing fee.
Under the Prison Litigation Reform Act, however, “[n]otwithstanding
any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court
determines that . . . the action . . . is frivolous.” §
1915(e)(2)(B)(i), (ii) (emphasis added). Miles has therefore not
shown the district court’s section 1915(e)(2)(B)(i) dismissal to be
an abuse of discretion. See Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997).
With regard to his failure to state a claim, Miles’s complaint
failed to allege facts that would show that his ability to pursue
a “nonfrivolous,” “arguable” legal claim was hindered by the
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alleged unconstitutional actions of the defendants. See
Christopher v. Harbury, 536 U.S. 403, 415 (2002) (internal
quotations omitted). Therefore, the section 1915(e)(2)(B)(ii)
dismissal was also appropriate. See Harris v. Hegmann,
198 F.3d
153, 156 (5th Cir. 1999).
The record discloses that the magistrate judge did not deny
Miles an evidentiary hearing; the magistrate judge ordered Miles
pursuant to Spears1 to submit a more definite statement; held, in
accordance with Spears, a telephonic evidentiary hearing; and Miles
amended his complaint. There was no abuse of discretion. E.g.,
Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994). Finally, Miles’s
argument that the district court erroneously dismissed the suit
pursuant to 42 U.S.C. § 1997e(c) on the basis of the defendants’
immunity is also not supported by the record.
Miles’s appeal lacks arguable merit and is therefore dismissed
as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). Miles is cautioned that the dismissal of
this appeal as frivolous counts as a strike for purposes of 28
U.S.C. § 1915(g), in addition to the strike for the district
court’s dismissal. See Adepegba v. Hammons,
103 F.3d 383, 388 (5th
Cir. 1996). Miles is further cautioned that if he accumulates
three strikes under section 1915(g), he will not be able to proceed
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
3
in forma pauperis 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 section 1915(g).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
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