     Case: 18-11614      Document: 00515056948         Page: 1    Date Filed: 07/31/2019




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

                                                                                  FILED
                                      No. 18-11614                            July 31, 2019
                                                                             Lyle W. Cayce
MANETIRONY CLERVRAIN,                                                             Clerk


                                                 Plaintiff–Appellant,

v.

JOHN CORAWAY,

                                                 Defendant–Appellee.


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:18-CV-819


Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
       Manetirony Clervrain, federal prisoner # 96396-004, moves for leave to
proceed in forma pauperis (IFP) on appeal. He filed a civil rights complaint
against the Director of the South Central Regional Office of the Bureau of
Prisons (BOP), making general allegations that he was denied access to the
courts, that the BOP and affiliated private prison facilities engaged in a
practice of apartheid while employees participated in an ongoing criminal
enterprise, and that the Immigration and Nationality Act (INA) is


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11614

unconstitutional. The district court dismissed the action under 28 U.S.C.
§ 1915A(b) for failure to raise a claim upon which relief may be granted, based
on Clervrain’s failure to allege facts showing that the named defendant or any
other individual was liable for any harm he suffered. The court also ruled that
Clervrain’s appeal was not taken in good faith in light of the reasons given in
the order of dismissal.
      By moving to proceed IFP, Clervrain is challenging the district court’s
good-faith certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
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 if it is frivolous. See Baugh,
117 F.3d at 202 n.24.
      In his brief before this court, Clervrain continues to make vague
allegations of harm, alleging that the district court had a duty to consider the
merits of his claims before it could conclude that he had failed to state a claim
for relief. A complaint will not proceed unless it “contain[s] sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
citation omitted). This court will “not accept as true conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Gentilello v. Rege, 627
F.3d 540, 544 (5th Cir. 2010) (internal quotation marks and citation omitted).
      Clervrain has not shown that the district court erred in its denial of
relief. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). A civil rights
action is not the appropriate vehicle for challenging the propriety of any order
of removal in immigration proceedings. See 8 U.S.C. § 1252(a)(5). Although
Clervrain contends that he has been denied access to the courts by deficiencies



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                                  No. 18-11614

in various prison law libraries and by restrictions on the amount of legal
materials he may obtain, he has not shown that he has been rendered unable
to pursue a nonfrivolous legal claim. See Christopher v. Harbury, 536 U.S. 403,
415 (2002). Clervrain has not specified the basis for his assertions that the
BOP engages in apartheid or that BOP employees are participating in criminal
actions, and any such arguments are deemed abandoned. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      To the extent that Clervrain is arguing that his original pleading should
have been construed as a motion for discovery in an open case in the Eastern
District of Texas, such a contention is nonsensical. If he is challenging the
district court’s failure to order the transfer of this case and cases pending in
other circuits to the Judicial Panel on Multidistrict Litigation, the court
correctly concluded that it lacked jurisdiction to do so. See 28 U.S.C. § 1407(a),
(c). Although Clervrain argues that the district court’s order to amend his
complaint was premature, the court was entitled to conduct a preliminary
screening of his case and to order him to amend his complaint before
dismissing the case for failure to state a claim. See § 1915A(b); Bazrowx v.
Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). To the extent that Clervrain may be
asserting that the district court should not have dismissed his cause of action
without providing him with another opportunity to amend, he had already had
a chance to do so and had presented his “best case.” See Brewster v. Dretke, 587
F.3d 764, 768 (5th Cir. 2009).
      Although Clervrain complains that the district court should have
considered the numerous motions that he had filed in this case, the court did
so by denying them in light of the dismissal of his complaint. The district court
properly denied Clervrain’s post-judgment motions. See FED. R. CIV. P. 60(b);
Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). Given the dismissal of



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                                 No. 18-11614

Clervrain’s case and Clervrain’s persistence in filing additional motions, the
district court did not abuse its discretion by barring Clervrain from filing
additional motions. See Newby v. Enron Corp., 302 F.3d 295, 301 (5th Cir.
2002); Farguson v. Mbank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
      Clervrain has not shown that the district court erred in dismissal of his
claims. See Iqbal, 556 U.S. at 678; Geiger, 404 F.3d at 373. Therefore, he has
not established that he will present a nonfrivolous issue on appeal. See
Howard, 707 F.2d at 220. 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 district court’s dismissal of Clervrain’s complain for failure to state
a claim upon which relief may be granted and this court’s dismissal of the
appeal as frivolous count as two strikes under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). In addition,
Clervrain has accumulated at least one other strike. See Clervrain v. Stone,
No. CV 318-028, 2018 WL 3939323, 1 (S.D. Ga. Aug. 16, 2018) (unpublished).
Clervrain is therefore barred from proceeding 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; BAR
IMPOSED.




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