     Case: 13-11121      Document: 00512566201         Page: 1    Date Filed: 03/19/2014




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

                                      No. 13-11121                              FILED
                                                                          March 19, 2014
                                                                           Lyle W. Cayce
BRYAN K. CHISOLM,                                                               Clerk

                                                 Plaintiff-Appellant

v.

DESOTO POLICE DEPARTMENT; W. TILLMAN, Detective; LIEUTENANT
M. SHARP; COMMANDER OF DESOTO JAIL,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CV-5025


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Bryan K. Chisolm, Texas prisoner # 1740218, moves this court to proceed
in forma pauperis (IFP) in this appeal from the district court’s dismissal of his
42 U.S.C. § 1983 complaint. This IFP motion is a challenge to the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-11121

        The district court correctly concluded that Chisolm could not raise a
claim of malicious prosecution under § 1983 and that he was required to
present a claim based on the rights secured by the Constitution. See Castellano
v. Fragozo, 352 F.3d 939, 942, 953-54 (5th Cir. 2003) (en banc). Although
Chisolm asserts that he is not raising a false arrest claim under the Fourth
Amendment, he also contends that he had a right not to be arrested in the
absence of probable cause. To the extent that this constitutes a challenge to
the district court’s consideration of a false arrest claim, Chisolm has failed to
show that the defendants, a police department and various officers, could be
liable for such an arrest because of the issuance of arrest warrants by
independent magistrates. See Murray v. Earle, 405 F.3d 278, 292 (5th Cir.
2005).
        Chisolm’s conclusional allegations that the City of DeSoto and the police
department failed to train officers on proper wiretapping procedures are
insufficient to show the existence of a policy or custom that resulted in the
violation of Chisolm’s constitutional rights. See Hathaway v. Bazany, 507 F.3d
312, 319 (5th Cir. 2007); Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996).
Although Chisolm also asserted the applicability of the “single incident
exception” to municipal liability, he has not shown that a policymaker
committed an unconstitutional act that would then be attributable to the
municipality. See Bell v. Wolfish, 441 U.S. 520, 556-57 (1979); Valle v. City of
Houston, 613 F.3d 536, 542 (5th Cir. 2010).
        The district court concluded that Chisolm’s state law claims against both
the individual and municipal defendants were barred by the Texas Tort Claims
Act.     Chisolm asserts that the district court should not consider such
allegations because they were raised in motions to dismiss filed before the
removal of Chisolm’s civil rights complaint to federal court. The defendants



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                                 No. 13-11121

presented the same allegations in their motion for summary judgment, which
was properly before the district court for consideration. Because Chisolm
raised claims against the City of DeSoto and the DeSoto Police Department,
the district court properly dismissed the claims against the individual
defendants. See TEX. CIV. PRAC. & REM. CODE § 101.106(e). Additionally,
because Chisolm’s claim of malicious prosecution alleged an intentional tort,
the Texas Tort Claims Act did not waive immunity on behalf of the
governmental units. See TEX. CIV. PRAC. & REM. CODE § 101.057(2). Although
Chisolm complains that the district court should have considered the validity
of his state law claims in light of the constitutional violations he suffered, he
has not presented a separate state law authority waiving immunity for such
allegations.
      Because Chisolm did not show a “genuine dispute as to any material
fact,” the district court properly granted summary judgment in favor of the
defendants. FED. R. CIV. P. 56(a). He has not established that he will present
a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983). Accordingly, the motion for leave to proceed IFP is denied and the
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.
R. 42.2. The dismissal of this appeal as frivolous counts as a strike under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Chisolm is cautioned that if he accumulates three strikes, he will no
longer be allowed 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).
      IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS;
SANCTION WARNING ISSUED.




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