     Case: 13-50906      Document: 00512621754         Page: 1    Date Filed: 05/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-50906
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
CLIFTON DELMAR JACKSON,                                                      May 7, 2014
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellant            Clerk

v.

DETECTIVE SMITH; JEFF D. KELLY; AMADEO ORTIZ,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-532


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Clifton Delmar Jackson, Texas prisoner # 1729942, moves for leave to
proceed in forma pauperis (IFP) to appeal the district court’s dismissal of his
42 U.S.C. § 1983 complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.
§ 1915A(b) as frivolous and for failure to state a claim upon which relief can be
granted. By moving to proceed IFP, Jackson 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 (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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-50906    Document: 00512621754      Page: 2   Date Filed: 05/07/2014


                                  No. 13-50906

      Jackson asserted that the defendants had failed to comply with a state
court order that certain seized property be returned to him. However, none of
the arguments in his IFP motion address the district court’s conclusion that
there has been no deprivation of due process if a meaningful state remedy for
the loss of property is available. See Hudson v. Palmer, 468 U.S. 517, 533
(1984); Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009). Jackson does
contest the district court’s finding that his appointed attorney, Jeff Kelly, was
not a state actor for purposes of § 1983 liability. The district court correctly
found that Kelly was not a state actor and that claims of legal malpractice may
not be brought in a § 1983 proceeding. See Polk County v. Dodson, 454 U.S.
312, 324-25 (1981); O’Brien v. Colbath, 465 F.2d 358, 359 (5th Cir. 1972).
      For these reasons, Jackson has not shown that his appeal involves any
arguably meritorious issue. His motion to proceed IFP is denied. See Howard
v . King, 707 F.2d 215, 220 (5th Cir. 1983). Because the appeal is frivolous, it
is dismissed. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
      The district court’s dismissal of Jackson’s § 1983 complaint and our
dismissal of this appeal as frivolous both count as strikes for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).
Jackson is cautioned that if he accumulates three strikes under § 1915(g), he
may not 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).
      MOTION TO PROCEED IFP DENIED; APPEAL DISMISSED AS
FRIVOLOUS; SANCTION WARNING ISSUED.




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