     Case: 13-11050      Document: 00512531751         Page: 1    Date Filed: 02/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                      No. 13-11050                                   FILED
                                                                              February 13, 2014
                                                                                Lyle W. Cayce
BABU S. KALLUVILAYIL,                                                                Clerk

                                                 Plaintiff-Appellant

v.

HONORABLE ROBERT BURNS, Judge, Criminal District Court #1, Dallas
County; LORI L. ORDIWAY, Attorney at Law; HONORABLE MARK C.
STOLTZ, Judge, 265th Judicial District Court, Dallas County; ARCH C.
MCCOLL, Attorney at Law; SHARON KELLER, Presiding Judge, Court of
Criminal Appeals; GARRY FITSIMMONS, Criminal District Clerk;
CARROLTON POLICE DEPARTMENT, Carrollton, Texas; CRAIG
WATKINS; SATUMINO BAUTISTA; MARIA BAUTISTA,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:13-CV-99


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
       Babu S. Kalluvilayil, Texas prisoner # 584945, moves for leave to proceed
in forma pauperis (IFP) on appeal and for the appointment of counsel. He filed
this 42 U.S.C. § 1983 action against various judges, attorneys, court clerks,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-11050

witnesses, the district attorney, and the Carrollton Police and Fire
Departments, all involved in his criminal prosecution for murder and his
subsequent appeals and state habeas proceedings, alleging numerous
violations of his constitutional rights. Kalluvilayil asked the court to conduct
discovery, expand the record, and conduct an evidentiary hearing in his state
habeas proceeding. He also requested compensation for illegal confinement.
He alleged that he suffered false imprisonment and mental and emotional
injury because of alleged constitutional violations, and he sought punitive
damages.
      The district court dismissed Kalluvilayil’s complaint as frivolous and for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). The district court
determined that Kalluvilayil’s claims against the Carrollton Police and Fire
Departments, District Attorney Craig Watkins, Saturnino and Maria Bautista,
and Rachel and Skaria Kalluvilayil, arising out of incidents occurring between
1989 and 1991, were barred by the statute of limitations. Noting that judges
are absolutely immune from suit under § 1983 for acts taken in the
performance of their judicial functions, the district court found that
Kalluvilayil had not alleged that Judge Burns or Presiding Judge Keller had
engaged in any actions which would deprive them of judicial immunity. The
district court ruled that because defense attorneys do not act under color of
state law, Kalluvilayil did not have a cause of action under § 1983 against his
attorneys Ordiway, Stolz, or McColl.        The court stated that Kalluvilayil’s
allegations against Clerk Fitzsimmons were conclusory and did not
demonstrate a due process or equal protection violation. The court further
determined that, in addition to being barred by the statute of limitations,
Kalluvilayil’s claims against District Attorney Watkins were barred by
prosecutorial immunity.     To the extent that Kalluvilayil sought monetary



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                                   No. 13-11050

damages for an allegedly unconstitutional imprisonment, the district court
ruled that his claims, which challenged the fact or duration of his confinement,
were precluded by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Denying
Kalluvilayil’s motion for leave to proceed IFP on appeal, the district court
determined that the appeal was not taken in good faith for the reasons given
in its order of dismissal and informed Kalluvilayil that he could challenge the
court’s finding under Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
        By moving to proceed IFP, Kalluvilayil is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh, 117 F.3d at
202. Our inquiry into an appellant’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). We may dismiss the appeal under 5th
Circuit Rule 42.2 if it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.
R.   42.2.
        Kalluvilayil makes no arguments challenging the reasons for the district
court’s dismissal of his various claims, and he does not address the “trial court’s
reasons for the certification decision.” See Baugh, 117 F.3d at 202. Pro se
briefs are afforded liberal construction. Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993). Nevertheless, when an appellant fails to identify any error in
the district court’s analysis, it is the same as if the appellant had not appealed
that issue. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). Because Kalluvilayil has failed to challenge any legal
aspect of the district court’s disposition of the claims raised in his complaint or
the certification that his appeal is not taken in good faith, he has abandoned
the critical issues of this appeal. See Brinkmann, 813 F.2d at 748. Thus, the
appeal lacks arguable merit and is therefore frivolous. See Howard, 707 F.2d



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at 220. Accordingly, Kalluvilayil’s motions for IFP and appointment of counsel
are denied, and his appeal is dismissed as frivolous. See Baugh, 117 F.3d at
202 n.24; 5TH CIR. R. 42.2.
      We hereby inform Kalluvilayil that the dismissal of this appeal as
frivolous counts as a strike for purposes of § 1915(g).          See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). The dismissal of his complaint
by the district court as frivolous and for failure to state a claim also counts as
a strike. Id. at 387-88. Kalluvilayil has at least two previous strikes per the
dismissals by the district court and this court in Kalluvilayil v. Texas Board of
Pardons and Paroles, No. 13-11005.              Because Kalluvilayil has now
accumulated at least three strikes under § 1915(g), he may not proceed IFP in
any civil action or appeal filed in a court of the United States while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g). Kalluvilayil is further warned that any
pending or future frivolous or repetitive filings in this court or any court subject
to this court’s jurisdiction may subject him to additional sanctions.
      MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) BAR IMPOSED;
SANCTION WARNING ISSUED.




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