Collins Nyabwa v. Corrections Corp. of America

Case: 17-20119 Document: 00514247861 Page: 1 Date Filed: 11/22/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-20119 FILED Summary Calendar November 22, 2017 Lyle W. Cayce Clerk COLLINS O. NYABWA, Plaintiff-Appellant v. CORRECTIONS CORPORATION OF AMERICA, Defendant-Appellee Appeals from the United States District Court for the Southern District of Texas USDC No. 4:16-CV-1644 Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM: * Collins O. Nyabwa has moved for leave to proceed in forma pauperis (IFP). He seeks to appeal the district court’s dismissal of his Bivens 1 complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. In that complaint, Nyabwa claimed that the Corrections Corporation of America (CCA) violated his constitutional rights by 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. 1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Case: 17-20119 Document: 00514247861 Page: 2 Date Filed: 11/22/2017 No. 17-20119 falsely imprisoning him at a federal immigration detention center pending deportation proceedings that were based on his three Texas convictions for improper photography. After his deportation proceedings were terminated and he was released from detention, the Texas Court of Criminal Appeals held in an unrelated case that the improper photography statute was unconstitutional. See Ex parte Thompson, 442 S.W.3d 325, 351 (Tex. Crim. App. 2014). In this case, the district court determined that (1) Nyabwa failed to state a claim against CCA because Bivens did not extend to a damages claim against a private entity; and (2) Nyabwa failed to state a false imprisonment claim under Texas state law. It also denied his motions for a declaration of actual innocence, summary judgment, leave to amend his complaint, recusal, and a hearing regarding his recusal motion. The district court denied Nyabwa leave to proceed IFP because it certified that his appeal was not taken in good faith. By moving for leave to proceed IFP on appeal, Nyabwa challenges the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into his good faith “is limited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted). Nyabwa’s first motion for leave to file a supplemental appeal brief is GRANTED. His second motion for leave to file a supplemental appeal brief is DENIED. We review de novo a dismissal for failure to state a claim under Rule 12(b)(6). See Legate v. Livingston, 822 F.3d 207, 209-10 (5th Cir.), cert. denied sub nom. Legate v. Collier, 137 S. Ct. 289 (2016). A complaint fails to state a claim upon which ...

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