United States Court of Appeals

for the Fifth Circuit

No. 20-10527

Tim L. Duke, 

Plaintiff—Appellant,

versus

City of Irving, Texas, 

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:20-CV-116

Before Jones, Costa, and Wilson, Circuit Judges.

Per Curiam:*

Tim L. Duke, Texas prisoner # 606639, filed a 42 U.S.C. § 1983 action 

against the City of Irving (City) arising from his wrongful conviction and 

incarceration for burglary of a habitation. The district court dismissed his 

complaint for failure to state a claim on which relief may be granted under 

28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). Duke timely appealed and filed 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 1, 2021

Lyle W. Cayce

Clerk

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a motion for leave to proceed in forma pauperis (IFP) on appeal. The district 

court denied his IFP motion and certified that his appeal was not taken in 

good faith. 

Challenging the district court’s certification, Duke moves for leave to 

proceed IFP on appeal. “An appeal may not be taken [IFP] if the trial court 

certifies in writing that it is not taken in good faith.” § 1915(a)(3). This 

court’s inquiry into whether the appeal is taken in 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 citations omitted). If the court upholds the 

district court’s certification, the appellant must pay the appellate filing fee or 

the appeal will be dismissed for want of prosecution. See Baugh v. Taylor, 117 

F.3d 197, 202 (5th Cir. 1997). However, if the appeal is frivolous, this court 

may dismiss it sua sponte. Id. at 202 n.24; 5th Cir. R. 42.2. 

We review de novo the district court’s dismissal of Duke’s § 1983 

action. See Legate v. Livingston, 822 F.3d 207, 209-10 (5th Cir. 2016). “[A] 

complaint will survive dismissal for failure to state a claim if it contains 

sufficient factual matter, accepted as true, to state a claim to relief that is 

plausible on its face.” Id. at 210 (internal quotation marks and citations

omitted). To establish that the City may be held liable under § 1983, Duke 

“must show that (1) an official policy (2) promulgated by the municipal 

policymaker (3) was the moving force behind the violation of a constitutional 

right.” Trammell v. Fruge, 868 F.3d 332, 344 (5th Cir. 2017) (internal 

quotation marks and citation omitted). A policy can include a persistent or 

widespread practice or custom. Pena v. City of Rio Grande, 879 F.3d 613, 621-

22 (5th Cir. 2018).

Duke has not pointed to any official policy or widespread practice of 

the City that gave rise to his alleged constitutional injury. See id.; Trammel, 

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868 F.3d at 344. He has therefore not alleged any facts demonstrating that 

the City could be held liable under § 1983, and he has not demonstrated a 

nonfrivolous argument that the district court erred in dismissing his 

complaint for failure to state a claim. See Trammel, 868 F.3d at 344.

Accordingly, Duke’s IFP motion is DENIED, and his appeal is 

DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir. 

R. 42.2.

The district court’s dismissal of Duke’s complaint and the dismissal 

of this appeal as frivolous count as two strikes under § 1915(g). See Coleman 

v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). In addition, a prior § 1983 action 

filed by Duke was dismissed for failure to state a claim pursuant to 

§ 1915(e)(2)(B), resulting in one strike. See Duke v. Nelms, No. 3:20-CV-665, 

2020 WL 1977451 (N.D. Tex. April 3, 2020) (unpublished). Because he now 

has at least three strikes, Duke is BARRED from proceeding IFP in any civil 

action or appeal filed in a court of the United States while he is incarcerated 

or detained in any facility unless he is under imminent danger of serious 

physical injury. See § 1915(g).

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