REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10489

TERRANCE T. COLER,

Plaintiff−Appellant,

versus

JUDGE KEMP; VICKY RICE, Defense Counsel; DR. PITTMAN,

Defendants−Appellees.

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 3:14-CV-237

Before SMITH, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Terrance Coler, Dallas County prisoner #13078686, moves for leave to 

proceed in forma pauperis (“IFP”) in this appeal of the dismissal of his 

42 U.S.C. § 1983 action as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 

1915A(b). By moving to proceed IFP, Coler is challenging the district court’s 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 10, 2015

Lyle W. Cayce

Clerk

 

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No. 14-10489

certification that the appeal was not taken in good faith. See Baugh v. Taylor, 

117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into 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).

Coler claims that the judge and clerk tampered with his legal mail and

conspired to violate his due-process rights and that the judge denied his right 

to appeal. He further contends that he submitted a motion for a change of

venue, that the clerk did not file the motion, and that a change of venue is 

necessary for him to receive justice.

If the district court determines that an appeal is frivolous, it may certify 

that it is not taken in good faith. See Baugh, 117 F.3d at 202; FED. R. APP.

P. 24(a). By making that certification, the court determined that Coler should 

not be allowed to proceed IFP on appeal, but the court did not deny Coler the 

right to appeal. See Baugh, 117 F.3d at 199−200; see Rule 24(a).

Coler does not identify any error in the district court’s determination 

that his claims were conclusional, that Judge Kemp and Dr. Pittman were 

entitled to absolute immunity, and that Rice could not be held liable under 

§ 1983 because Coler did not show that she acted under color of state law. 

Therefore, Coler has abandoned those issues on appeal by failing to brief them 

adequately. See Yohey v. Collins, 985 F.2d 222, 224−25 (5th Cir. 1993); FED.

R. APP. P. 28(a); see also Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 

813 F.2d 744, 748 (5th Cir. 1987).

Nonetheless, the district court did not err in determining that Judge 

Kemp and Dr. Pittman are entitled to absolute judicial immunity. See Boyd v. 

Biggers, 31 F.3d 279, 284−85 (5th Cir. 1994); see also Williams v. Consovoy, 

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453 F.3d 173, 178 (3d Cir. 2006); Morstad v. Dep’t of Corr. & Rehab., 147 F.3d 

741, 744 (8th Cir. 1998). The court also did not err in determining that Rice 

could not be held liable under § 1983 because Coler did not show that she acted 

under color of state law. See Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 

679 (5th Cir. 1988).

Coler has not shown that he will raise a nonfrivolous issue on appeal. 

Therefore, the motion for leave to proceed IFP is DENIED, and the 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 the § 1983 complaint and the dismissal 

of this appeal count as two strikes under § 1915(e). See Adepegba v. Hammons, 

103 F.3d 383, 388 (5th Cir. 1996). The district court previously dismissed two 

of Coler’s civil actions with prejudice as frivolous pursuant to §§ 1915(e) and 

1915A. See Coler v. Dallas Cnty. Sheriff’s Dep’t, No. 3:14-CV-1819 (N.D. Tex. 

Oct. 7, 2014); Coler v. Hoff, No. 3:14-CV-236 (N.D. Tex. Apr. 21, 2014). Because 

Coler did not appeal those judgments, each counts as a strike against him 

under § 1915(e). See Adepegba, 103 F.3d at 388. Coler has now accumulated 

at least three strikes and therefore may not proceed IFP in any civil action or 

appeal filed while incarcerated or detained in any facility unless he is under 

imminent danger of serious physical injury. See § 1915(g).

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