Collins Nyabwa v. Unknown Jailers at CCA

Case: 17-20066 Document: 00514228948 Page: 1 Date Filed: 11/07/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 17-20066 Fifth Circuit FILED Summary Calendar November 7, 2017 Lyle W. Cayce COLLINS O. NYABWA, Clerk Plaintiff-Appellant v. UNKNOWN JAILERS AT CORRECTIONS CORPORATION OF AMERICA, Defendant-Appellee Appeal from the United States District Court for the Southern District of Texas USDC No. 4:16-CV-782 Before DAVIS, CLEMENT, and OWEN, 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 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted. In that complaint, Nyabwa claimed that unknown jailers employed by the Corrections Corporation of America violated his constitutional 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 the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Case: 17-20066 Document: 00514228948 Page: 2 Date Filed: 11/07/2017 No. 17-20066 rights by 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 the defendants because Bivens did not extend to a damages claim against private entities, and (2) Nyabwa failed to state a false imprisonment claim under Texas state law. It also denied his motions for recusal, a hearing regarding his recusal motion, and default judgment. 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 motion for leave to file a supplemented or corrected appeal brief is GRANTED. We review de novo a dismissal for failure to state a claim under § 1915(e)(2)(B)(ii). See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). A complaint fails to state a claim upon which relief may be granted when it does not contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” ...

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