IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-31217

Summary Calendar

RICHARD NATHANIEL MILLER,

Plaintiff-Appellant

v.

EDITH BROWN CLEMENT, United States Fifth Circuit Judge, Sued in 

Official and Individual Capacities; W. EUGENE DAVIS, In Official Capacities 

(Circuit Judge); GREGG J. COSTA, In Official Capacities (Circuit Judge); JAY 

C. ZAINEY; ALMA L. CHASEZ, District Court Magistrate, Sued in Official 

Individualized and Sovereignty Capacity; JOHN BEL EDWARDS, Governor, 

Sued in Official Capacity; JEFF LANDRY, Attorney General Official Capacity; 

LEON CANNIZZARO, Orleans Parish District Attorney's Office, Official 

Capacity; ANDREW PICKETT, Assistant District Attorney Sued in Individual 

and Official Capacities; J. BRYANT CLARK, Assistant District Attorney Sued 

in Individual and Official Capacities; STATE OF LOUISIANA,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CV-5778

Before WIENER, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

 

* 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

November 29, 2017

Lyle W. Cayce

Clerk

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No. 16-31217

2

Richard Nathaniel Miller, Louisiana prisoner # 347066, appeals the 

district court’s dismissal of his 42 U.S.C. § 1983 action in part as frivolous, in 

part for failure to state a claim, and in part based on the immunity of some of 

the defendants. In this court, Miller filed a “Motion to Stay/Motion for 

Extension of Time,” arguing for the first time on appeal that his Fifth and 

Fourteenth Amendment rights have been violated as a result of an obstruction 

of justice, malfeasance in office, and federal prosecution witness tampering. 

He further alleges that the defendants violated his right to be free from cruel

and unusual punishment by administering a toxic psychotropic drug that 

caused him to suffer psychological and physiological problems. Miller requests 

a stay until the United States Attorney conducts a criminal investigation. 

Miller also raises new claims against the clerk of this court, Lyle Cayce, and 

two employees of the clerk’s office. This court will not consider new legal 

theories that have been raised for the first time on appeal absent extraordinary 

circumstances. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 593 (5th Cir. 

2006). Miller has not presented extraordinary circumstances as he has not 

presented purely legal issues nor shown that the asserted errors were so 

obvious that failure to consider them would result in a miscarriage of justice. 

See id.; Conley v. Board of Trs. of Grenada Cnty. Hosp., 707 F.2d 175, 178 (5th 

Cir. 1983). The motion to stay further proceedings is denied.

In his brief, Miller reasserts his claims and does not identify any error 

in the district court’s dismissal of his claims. Thus, Miller has abandoned any 

challenge to the district court’s dismissal of his claims. See Yohey v. Collins, 

985 F.2d 222, 224–25 (5th Cir. 1993); Brinkmann v. Dallas Cty. Deputy Sheriff 

Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, Miller’s appeal is 

dismissed as frivolous.

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The dismissal of this appeal as frivolous counts as a strike under 

28 U.S.C. § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761–64 (2015); 

Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Miller is cautioned 

that once he accumulates three strikes, he may not proceed in forma pauperis 

in any civil action or appeal filed while he is incarcerated or detained in any 

facility unless he is under imminent danger of serious physical injury. 

See § 1915(g).

The district court determined that to the extent that Miller sought 

habeas relief, his action was an unauthorized successive 28 U.S.C. § 2254 

application, which must be dismissed. The district court did not rule on 

whether a certificate of appealability (“COA”) should be issued. We decline to 

remand for a COA determination because a remand would be futile. See 

United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). 

APPEAL DISMISSED IN PART AS FRIVOLOUS AND IN PART FOR 

LACK OF JURISDICTION; DENY MOTION TO STAY FURTHER 

PROCEEDINGS; SANCTION WARNING ISSUED.

 Case: 16-31217 Document: 00514253124 Page: 3 Date Filed: 11/29/2017