     Case: 18-50930      Document: 00515335660         Page: 1    Date Filed: 03/06/2020




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

                                                                                 FILED
                                      No. 18-50930                           March 6, 2020
                                                                            Lyle W. Cayce
FRED G. MARTINEZ,                                                                Clerk


                                                 Plaintiff-Appellant

v.

THE STATE BAR OF TEXAS; CRAIG CHARLTON, Senior Investigator;
STEPHANIE STROLLE, Assistant Disciplinary Counsel; JOSEPH
ACEVEDO, State Bar Member,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CV-945


Before DENNIS, WILLETT, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Fred G. Martinez, Texas prisoner # 2061834, moves for leave to proceed
in forma pauperis (IFP) in this appeal of the dismissal of his 42 U.S.C. § 1983
complaint. The motion is a challenge to the district court’s certification that
the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50930

      In his complaint, Martinez maintained that after he filed a grievance
with the State Bar of Texas against Joseph Acevedo, his attorney in criminal
proceedings, employees of the State Bar and Acevedo breached a contract by
requesting and obtaining multiple continuances, by permitting Acevedo to file
an untimely response to Martinez’s grievance, and by taking the response into
consideration in determining that Martinez’s complaint was without merit. He
maintains that these actions constituted a denial of due process and interfered
with his First Amendment right to petition for the redress of grievances. The
district court dismissed the case pursuant to 28 U.S.C. § 1915(e)(2) and
28 U.S.C. § 1915A(b) as frivolous, for failing to state a claim, and for seeking
relief against immune defendants. Martinez contends that his claims warrant
relief because he sought declaratory and injunctive relief against the
defendants in their official capacities, because the defendants are not entitled
to qualified immunity, because the breach of contract and failure to follow state
rules violated his constitutional rights, and because his trial counsel conspired
with the State Bar employees to violate his rights.
      The district court found that the doctrine of sovereign immunity barred
only Martinez’s damage claims against the defendants in their official
capacities. The court did not find that the defendants were entitled to qualified
immunity on Martinez’s claims against them in their individual capacities; it
instead ruled that Martinez had suffered no injury as a result of the procedure
used to consider his bar grievance and that his trial attorney was not a state
actor for § 1983 purposes.
      Martinez is unable to show that the consideration of his bar grievance
“produce[d] erroneous or unreliable results [that] imperil[ed] a protected
liberty or property interest.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.
1997).   He has not established that he had a cognizable interest in the



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                                 No. 18-50930

procedures used to consider his bar grievance or in the ultimate outcome of the
proceedings. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
(holding that a private citizen generally does not have a cognizable interest in
the decision to prosecute a third party); Myers v. Klevenhagen, 97 F.3d 91, 94
(5th Cir. 1996) (noting that a failure to follow prison rules in addressing
grievances does not create a civil rights claim). We need not accept Martinez’s
conclusional assertion that a failure to consider Acevedo’s response to his
grievance would necessarily have resulted in a finding of professional
misconduct, which would necessarily have led to the grant of a new trial on the
basis of ineffective assistance. See Gentilello v. Rege, 627 F.3d 540, 544 (5th
Cir. 2010). With respect to Martinez’s First Amendment claim, he was able to
petition the State by filing a grievance with the State Bar; the Constitution
does not require the State to take any particular action in response. See Smith
v. Ark. St. Hwy. Emp., Local 1315, 441 U.S. 463, 465 (1979). As for Martinez’s
assertion that Acevedo conspired with employees of the State Bar, he has not
established that these individuals were motivated to discriminate against him
on a protected basis or that he was deprived of a constitutional right. See Miss.
Women’s Med Clinic v. McMillan, 866 F.2d 788, 793 (5th Cir. 1989).
      Because Martinez did not allege “a claim to relief that is plausible on its
face,” the district court properly dismissed his complaint. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). 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.            Martinez’s motion for
appointment of counsel should therefore be denied.




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                                 No. 18-50930

      The district court’s dismissal of the complaint as frivolous and for failure
to state a claim counts as one strike under 28 U.S.C. § 1915(g), as does the
dismissal of this appeal as frivolous. See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996), abrogated in part on other grounds by Coleman v.
Tollefson, 575 U.S. 532 (2015). Martinez 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;
MOTION FOR APPOINTMENT OF COUNSEL DENIED; SANCTION
WARNING ISSUED.




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