IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10152

THOMAS LEE WILLIAMS,

Plaintiff-Appellant

v.

K. EDENFIELD, Warden; HARLEY G. LAPPIN, Director; ERIC HOLDER, 

Attorney General; UNITED STATES OF AMERICA,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:12-CV-76

Before JONES, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:*

Thomas Lee Williams, federal prisoner # 91316-071, filed a civil action 

seeking declaratory and injunctive relief, as well as damages, for claims arising 

under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named 

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as a result of his 

confinement at Big Spring Correctional Institute from October 2008 until 

January 2011. The magistrate judge (MJ), who presided by consent, dismissed 

* 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 19, 2013

Lyle W. Cayce

Clerk

 

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No. 13-10152

the complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and denied 

Williams’s motion for leave to proceed in forma pauperis (IFP), certifying that 

the appeal was not taken in good faith. Williams now moves this court for 

leave to proceed IFP on appeal.

“An appeal may not be taken in forma pauperis if the trial court certifies 

in writing that it is not taken in good faith.” § 1915(a)(3); accord FED. R. APP.

P. 24(a)(3)(A). By moving to proceed IFP in this court, Williams is challenging 

the district court’s certification that his appeal is not taken in good faith. See 

Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997). This court’s inquiry 

into a litigant’s 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). In addition, when the district court’s certification decision is 

inextricably intertwined with the merits of the case, this court may dispose of 

the appeal on its merits and, in the case of a frivolous appeal, may dismiss it 

sua sponte. Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

In his brief before this court, Williams argues that the MJ misconstrued 

his complaint as stating only Bivens claims and asserts that the complaint 

should have been construed as raising both FTCA claims and Bivens claims. 

The remainder of Williams’s brief is dedicated to two arguments. First, with 

the benefit of liberal construction, Williams argues that the MJ erred by 

determining that his FTCA and Bivens claims were time barred. Second, he 

argues that he is being denied the opportunity to bring his Bivens claims

because he is being prevented from contacting witnesses to support his claims.

Williams does not challenge the MJ’s determination that his Bivens

claims against the defendants in their official capacities were frivolous; that 

his claims for injunctive relief were moot; and that his Bivens claims that 

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accrued after May 7, 2010, were frivolous because he failed to show that the 

defendants were personally involved in the alleged deprivation of his rights or 

that there was a basis for applying supervisory liability. He has therefore 

abandoned any challenge to those determinations. Yohey v. Collins, 985 F.2d 

222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 

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

This court reviews for abuse of discretion a district court’s dismissal of a 

complaint as frivolous under § 1915(e)(2)(B)(i). Brewster v. Dretke, 587 F.3d 

764, 767 (5th Cir. 2009). A claim is frivolous if it lacks an arguable factual or 

legal basis. Id.

A review of Williams’s complaint shows that, as determined by the MJ, 

his claims were all constitutionally based and not tortious in nature. On 

appeal, Williams conclusionally states that his medical complaint was based 

on state tort law. However, both in his complaint and in his brief before this 

court, Williams does not allege any negligence on the part of any medical 

provider, provides no argument as to Texas malpractice law, does not provide 

any detailed FTCA analysis, and does not attempt to indicate how that law 

might apply to the facts of his case. See, e.g., Hannah v. United States, 523 

F.3d 597, 601 (5th Cir. 2008). As such, he has not demonstrated that the MJ 

erred by determining that he failed to state an FTCA claim and that his 

complaint was frivolous. See Brewster, 587 F.3d at 767.

The limitation period for a Bivens action may be equitably tolled. See

Clifford v. Gibbs, 298 F.3d 328, 332-33 (5th Cir. 2002). The district court’s 

refusal to equitably toll a limitation period is reviewed for abuse of discretion. 

See Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir. 2002). Williams bears 

the burden of proving that he is entitled to equitable tolling. See id. at 457. 

Equitable tolling has been granted most frequently when a defendant has 

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actively misled a plaintiff about the cause of action or has prevented him in 

some extraordinary way from asserting his rights. Id.

Williams has not alleged facts that show that the Bivens defendants took 

any action to preclude him from filing his complaint within the two-year 

limitations period. See Teemac, 298 F.3d at 456. Furthermore, Williams has 

not demonstrated that he diligently pursued relief. See Lawrence v. Florida,

549 U.S. 327, 336 (2007). As such, he has not demonstrated that the MJ 

abused his discretion by denying equitable tolling. Teemac, 298 F.3d at 456.

To the extent that Williams is attempting to bring a due process claim 

based upon being prevented from talking to another federal inmate, we do not 

address it because he did not raise the issue below. See Singleton v. Wulff, 428 

U.S. 106, 120 (1976).

Williams has not demonstrated that he will present a nonfrivolous issue 

for appeal. Accordingly, his motion for leave to proceed IFP is denied, and his 

appeal is dismissed as frivolous. Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

The district court’s dismissal of Williams’s complaint as frivolous and the 

dismissal of this appeal as frivolous each count as a strike. See § 1915(g);

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Williams is 

warned that if he accumulates a third strike, he may not proceed IFP in any 

civil action or file an appeal while he is incarcerated or detained in any facility 

unless he is in imminent danger of serious physical injury. See § 1915(g).

MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING 

ISSUED.

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