IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20041

Summary Calendar

DAVID JAMES,

Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ADMINISTRATORS OF 

ACCESS TO COURTS; ATTORNEY GENERAL OF THE STATE OF TEXAS; 

JUDICIAL OFFICERS OF THE STATE OF TEXAS,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CV-1927

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

David James, Texas prisoner # 1251548, appeals a judgment dismissing 

his 42 U.S.C. § 1983 complaint for failure to state a claim under 28 U.S.C. 

§ 1915(e)(2). James alleged that Texas prison officials and employees and 

other state officials violated his right of access to the courts by failing to provide 

him with access to an adequate law library or a person trained in the law to 

* 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 21, 2014

Lyle W. Cayce

Clerk

 

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No. 14-20041

assist him in filing his original state habeas application in 2007. He also 

claimed that state court officials violated his right of access to the courts by 

refusing to consider and address on the merits the claims set forth in his 

subsequent state habeas application. 

We apply de novo review to a prisoner’s action dismissed for failure to 

state a claim. Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011). We have 

reviewed the record and James’s brief and agree with the dismissal for failure 

to state a claim, as James does not show that his ability to pursue a 

nonfrivolous legal claim was hindered by any actions of the defendants while 

he was imprisoned in the Jester IV Unit of the Texas Department of Criminal 

Justice. See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Krause v. 

Thaler, 637 F.3d 558, 561 (5th Cir. 2011). Further, in his brief to this court, 

James does not challenge the determination that his claim based on the state 

court’s recent dismissal of his subsequent state habeas application lacked 

merit. Johnson thus abandons this issue by failing to adequately brief it. See 

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

The district court dismissed James’s complaint with prejudice for failure 

to state a claim pursuant to § 1915(e)(2)(B)(ii). James argues that the district 

court erred in dismissing his claims without providing him an opportunity to 

amend and without first serving his complaint on the defendants and hearing 

an answer from them. A district court, however, may dismiss a prisoner’s in 

forma pauperis action at any time after properly determining that the action 

fails to state a claim, even prior to service of process. See 28 U.S.C. 

§§ 1915(e)(2) & 1915A. Further, James was given an opportunity to cure the 

inadequacies in his pleading through the district court’s use of a questionnaire 

in the nature of a motion for more definite statement. See Eason v. Thaler, 

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14 F.3d 8, 9 (5th Cir. 1994). Therefore, he cannot show that the district court 

abused its discretion in dismissing his complaint with prejudice.

James also seeks appointment of counsel on appeal. His case does not 

present exceptional circumstances warranting the appointment of counsel. See 

Cooper v. Sheriff, Lubbock Cnty., Texas, 929 F.2d 1078, 1084 (5th Cir. 1991). 

Accordingly, his motion for appointment of counsel is DENIED. 

The judgment of the district court is AFFIRMED. Additionally, the 

following requests set forth in James’s brief are DENIED AS MOOT: (1) that 

this court issue a declaratory judgment instructing the state courts to not treat 

his pending state habeas application as successive; (2) that this court order the 

defendants to pay and/or refund his filing fees; (3) that this court order the 

state courts to appoint a neurologist for James and to hold an evidentiary 

hearing at which Dr. Harry Bonnell can testify; and (4) that this court stay the 

motion for authorization filed in Case No. 13-20679. 

The district court’s dismissal of James’s complaint counts as a strike for 

purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 

1996). James is WARNED that if he accumulates three strikes, he will no 

longer be allowed to proceed in forma pauperis in any civil action or appeal 

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

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

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