Webb v. County of Coryell

U.S. Court of Appeals for the Fifth Circuit

Webb v. County of Coryell

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50283 Summary Calendar

BARBARA JO WEBB,

Plaintiff-Appellant,

versus

THE COUNTY OF CORYELL; SANDY GATELY, as former District Attorney for the County of Coryell in her individual and official capacity and present District Attorney unknown, individually and official capacity; GINA DEBOTTIS, Individually and official capacity as an official of the County of Coryell; JOHN DOE, an individual whose name unknown to plaintiff individually and in his capacity as an official of the County Director Administrative over Grand Jury Selective; JANE DOE, an individual whose name unknown to plaintiff individually and in her capacity as an official of the County of Coryell, Registrator of Account Department; GERALD KITCHEN, as former Sheriff, Individually and in his capacity as Sheriff of Coryell County; LINDA MOTEN, Individually and as Grand Jury Foreman for the 1994 term for the County of Coryell; GERALD GOODWIN, individually and in his capacity as an official of the Coryell Sheriff Investigation Division of Coryell County; TEXAS BOARD OF PARDONS & PAROLES; GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, in his executive office individually and as director; JOHN MONRARTY, Director Office of Inspector General, individually and as Director of Investigation Agency in his individual and official capacity; INMATE TRUST FUND, a department of the Texas Department of Criminal Justice - Institutional Division and State of Texas; INMATE LEGAL SERVICE DEPARTMENT, an office or department of Texas Department of Criminal Justice - Institutional Division; SHERRY NANCE, Warden, individually and official capacity as a officer department head of unit in Texas Department of Criminal Justice - Institutional Division; LINDA AMENT, Warden, individually and official capacity as officer department head of Unit in Texas Department of Criminal Justice - Institutional Division; UNKNOWN MOYA, Warden, individually and official capacity as officer department head of Lane Murray unit; Division of Texas Department of Criminal Justice - Institutional Division; UNKNOWN BLANCHARD, Sub Counsel of Lane Murray; individually and official capacity; CLARK, Captain, in her individually and official capacity as disciplinary captain of Lane Murray Unit Texas Department of Criminal Justice - Institutional Division; BATCHELOR, Lieutenant, in his individual and official capacity as Lieutenant at Lane Murray Unit, a Division of Texas Department of Criminal Justice - Institutional Division; FNU HOPKINS, Correctional Officer 3, individual and official capacity as kitchen stewart at Mount Viewe Unit, Texas Department of Criminal Justice - Institutional Division; DIRECTOR UNIVERSITY OF TEXAS MEDICAL BRANCH, in his authority individually and official capacity of Health Care Service and Safety in authority to Texas Department of Criminal Justice - Institutional Division; RISK MANAGEMENT DIRECTOR PEEVY, Risk Management, Individually and official capacity as Division Director for Safety Texas Department of Criminal Justice - Institutional Division; UNKNOWN WILSON, Major, Former Major of Lane Murray in his individual and official capacity in authority of Texas Department of Criminal Justice - Institutional Division; COUNTY OF WALKER CORRECTIONAL OFFICER; LINDA MADDEN, Attorney, in her individual and official capacity as acting attorney for Texas Department of Criminal Justice - Institutional Division Special Prosecutor,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas (W-02-CV-5)

December 24, 2002 Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:1

Barbara Jo Webb, Texas prisoner # 335682, has filed a pro se

motion for leave to proceed in forma pauperis (IFP) on appeal. Her

42 U.S.C. § 1983

complaint was dismissed as frivolous, based on the

1 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.

2 collateral estoppel of her claims. And, the district court found

Webb was barred by

28 U.S.C. § 1915

(g) from proceeding IFP. By

seeking IFP status, Webb is challenging the district court’s

certification that such status should not be granted on appeal

because her appeal is both frivolous and not taken in good faith.

See Baugh v. Taylor,

117 F.3d 197, 202

(5th Cir. 1997).

Pursuant to the requisite liberal reading of the complaint,

the record does not support the district court’s determination that

Webb’s claims are collaterally estopped. Nor does it appear that

she had accumulated the three strikes necessary for application of

the § 1915(g) bar. Therefore, her motion to proceed IFP on appeal

is GRANTED.

The dismissal of Webb’s complaint can be affirmed, however,

on other grounds. See Bickford v. Int’l Speedway Corp.,

654 F.2d 1028

, 1031 (5th Cir. 1981). All of her claims stem from her

allegations that there was a widespread conspiracy by all of the

defendants to violate her civil rights and that it spanned from

December 1993 to April 2000. Because Webb’s conspiracy allegations

are wholly conclusional, they do not support an actionable claim.

See Babb v. Dorman,

33 F.3d 472, 476

(5th Cir. 1994). To the

extent that Webb has attempted to assert individual claims

regarding the violation of her constitutional rights, those claims

are abandoned because they have been inadequately briefed.

See FED. R. APP. P. 28(a)(9); see also Yohey v. Collins,

985 F.2d 222, 225

(5th Cir. 1993).

3 This affirmance of the dismissal of Webb’s complaint as

frivolous counts as her third “strike” for purposes of § 1915(g).2

See Adepegba v. Hammons,

103 F.3d 383, 385-87

(5th Cir. 1996).

Webb may no longer proceed IFP in any civil action or appeal filed

while she is incarcerated or detained in any facility unless she is

under imminent danger of serious physical injury. See

28 U.S.C. § 1915

(g).

IFP GRANTED; AFFIRMED;

28 U.S.C. § 1915

(g) BAR IMPOSED

2 The dismissal of Webb v. Scott, Civil Action No. 6:97-CV- 242 (W.D. Tex. 1999), and Webb v. Parole Division/TDCJ, Civil Action No. 6:99-CV-202 (W.D. Tex. 2000) as frivolous also count as strikes.

4

Reference

Status
Unpublished