United States Court of Appeals

for the Fifth Circuit ____________

No. 23-30820

____________

Kelton L. Spann, 

Plaintiff—Appellant, 

versus

Bogalusa Clerk of Court Office; Tonia Deleon, Deputy 

Clerk, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:21-CV-519

______________________________

Before Clement, Engelhardt, and Ramirez, Circuit Judges.

Per Curiam:*

Kelton L. Spann, a Washington Parish Jail inmate at the time that he 

filed the instant appeal, moves to proceed in forma pauperis (IFP) on appeal 

following the dismissal of his 42 U.S.C. § 1983 suit for failure to state a claim 

and the subsequent denial of his Federal Rule of Civil Procedure 59(e) 

motion. Through his IFP motion, Spann challenges the district court’s 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

March 28, 2024

Lyle W. Cayce

Clerk

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determination that the appeal is not taken in good faith. See Baugh v. Taylor, 

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

(citation omitted).

Contrary to Spann’s assertion, the district court sufficiently complied 

with Federal Rule of Appellate Procedure 24(a)(3) and 28 U.S.C. 

§ 1915(a)(3) by incorporating by reference its orders dismissing his complaint

and denying his Rule 59(e) motion. See Baugh, 117 F.3d at 202 n.21. Spann 

does not address, and has therefore abandoned any challenge to, the district 

court’s implicit dismissal of his claim that the Bogalusa City Court Clerk’s 

Office (Clerk’s Office), together with another local entity, retaliated against 

him for invoking his constitutional rights. See Yohey v. Collins, 985 F.2d 222, 

225 (5th Cir. 1993) (holding that pro se appellant must brief arguments to 

preserve them). 

We review a dismissal pursuant to Federal Rule of Civil Procedure

12(b)(6) de novo and may affirm on any basis supported by the record. Taylor 

v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015). Establishing 

municipal liability under Monell v. Dep’t of Soc. Servs. of City of New York, 436 

U.S. 658 (1978), “requires proof of three elements: a policymaker; an official 

policy; and a violation of constitutional rights whose ‘moving force’ is the 

policy or custom.” Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 

2001) (quoting Monell, 436 U.S. at 694). Although Spann contends that he 

stated a valid Monell claim against the Clerk’s Office and Deputy Clerk Tonia 

Deleon (in both her official and individual capacities) because they acted 

pursuant to an unconstitutional policy or custom of disallowing indigent 

defendants to appeal without paying fees and costs, he did not allege the 

existence of any official written policy, see Balle v. Nueces Cnty., 952 F.3d 552, 

559 (5th Cir. 2017), nor did he cite with specificity any similar prior incidents 

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as necessary to establish a policy based upon a pattern, see Davidson v. City of 

Stafford, 848 F.3d 384, 396 (5th Cir. 2017).

Moreover, in an order adjudicating Spann’s motion for a waiver of the 

fees and costs of preparing his appeal, the presiding Bogalusa City Court 

judge waived some costs, denied the waiver of others, and observed that 

Spann failed to timely pay the non-waived costs; we may properly take 

judicial notice of this order as a matter of public record. See Norris v. Hearst 

Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007). Unlike in Williams v. Okla. City, 

395 U.S. 458, 458-60 (1969), upon which Spann relies to show a violation of 

his Fourteenth Amendment rights, the order does not reflect that the judge 

denied a full waiver of appellate fees and costs based upon any perceived lack 

of authority to grant such relief. More fundamentally, Spann did not allege 

sufficient facts in his complaint to plausibly show that the two named 

defendants could have granted him such a waiver in contravention of the

judge’s order. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Spann fails to identify a nonfrivolous issue challenging the Rule 

12(b)(6) dismissal of his § 1983 suit. See Iqbal, 556 U.S. at 678; Piotrowski, 

237 F.3d at 578; Howard, 707 F.2d at 220. He likewise fails to identify a 

nonfrivolous issue regarding whether the district court abused its discretion 

by denying his Rule 59(e) motion, which substantively reiterated his claims 

under Monell and Williams. See Trevino v. City of Fort Worth, 944 F.3d 567, 

570 (5th Cir. 2019); Howard, 707 F.2d at 220. Accordingly, we DENY the 

IFP motion and DISMISS the appeal as frivolous. See Baugh, 117 F.3d at

202 n.24; 5th Cir. R. 42.2.

Our dismissal of the appeal as frivolous counts as a strike for purposes 

of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 

1996); abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S. 532, 

537 (2015). In addition, Spann has a previous strike for purposes of § 1915(g). 

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Spann v. Strain, 726 F. App’x 265, 265, 267 (5th Cir. 2018). We WARN

Spann that if he accumulates a third strike, he will not be permitted to 

proceed IFP 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).

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