     Case: 13-10152      Document: 00512446908         Page: 1    Date Filed: 11/19/2013




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

                                                                                     FILED
                                      No. 13-10152                           November 19, 2013
                                                                                Lyle W. Cayce
THOMAS LEE WILLIAMS,                                                                 Clerk


                                                 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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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                                  No. 13-10152

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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                                  No. 13-10152

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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