     Case: 16-31217      Document: 00514253124         Page: 1    Date Filed: 11/29/2017




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

                                    No. 16-31217                                 FILED
                                  Summary Calendar                       November 29, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
RICHARD NATHANIEL MILLER,

                                                 Plaintiff-Appellant

v.

EDITH BROWN CLEMENT, United States Fifth Circuit Judge, Sued in
Official and Individual Capacities; W. EUGENE DAVIS, In Official Capacities
(Circuit Judge); GREGG J. COSTA, In Official Capacities (Circuit Judge); JAY
C. ZAINEY; ALMA L. CHASEZ, District Court Magistrate, Sued in Official
Individualized and Sovereignty Capacity; JOHN BEL EDWARDS, Governor,
Sued in Official Capacity; JEFF LANDRY, Attorney General Official Capacity;
LEON CANNIZZARO, Orleans Parish District Attorney's Office, Official
Capacity; ANDREW PICKETT, Assistant District Attorney Sued in Individual
and Official Capacities; J. BRYANT CLARK, Assistant District Attorney Sued
in Individual and Official Capacities; STATE OF LOUISIANA,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:16-CV-5778


Before WIENER, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-31217      Document: 00514253124    Page: 2   Date Filed: 11/29/2017


                                  No. 16-31217

      Richard Nathaniel Miller, Louisiana prisoner # 347066, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action in part as frivolous, in
part for failure to state a claim, and in part based on the immunity of some of
the defendants.      In this court, Miller filed a “Motion to Stay/Motion for
Extension of Time,” arguing for the first time on appeal that his Fifth and
Fourteenth Amendment rights have been violated as a result of an obstruction
of justice, malfeasance in office, and federal prosecution witness tampering.
He further alleges that the defendants violated his right to be free from cruel
and unusual punishment by administering a toxic psychotropic drug that
caused him to suffer psychological and physiological problems. Miller requests
a stay until the United States Attorney conducts a criminal investigation.
Miller also raises new claims against the clerk of this court, Lyle Cayce, and
two employees of the clerk’s office. This court will not consider new legal
theories that have been raised for the first time on appeal absent extraordinary
circumstances. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 593 (5th Cir.
2006). Miller has not presented extraordinary circumstances as he has not
presented purely legal issues nor shown that the asserted errors were so
obvious that failure to consider them would result in a miscarriage of justice.
See id.; Conley v. Board of Trs. of Grenada Cnty. Hosp., 707 F.2d 175, 178 (5th
Cir. 1983). The motion to stay further proceedings is denied.
      In his brief, Miller reasserts his claims and does not identify any error
in the district court’s dismissal of his claims. Thus, Miller has abandoned any
challenge to the district court’s dismissal of his claims. See Yohey v. Collins,
985 F.2d 222, 224–25 (5th Cir. 1993); Brinkmann v. Dallas Cty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).        Accordingly, Miller’s appeal is
dismissed as frivolous.




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    Case: 16-31217    Document: 00514253124     Page: 3   Date Filed: 11/29/2017


                                 No. 16-31217

      The dismissal of this appeal as frivolous counts as a strike under
28 U.S.C. § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761–64 (2015);
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Miller is cautioned
that once he accumulates three strikes, he may not proceed in forma pauperis
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).
      The district court determined that to the extent that Miller sought
habeas relief, his action was an unauthorized successive 28 U.S.C. § 2254
application, which must be dismissed.      The district court did not rule on
whether a certificate of appealability (“COA”) should be issued. We decline to
remand for a COA determination because a remand would be futile.             See
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).
    APPEAL DISMISSED IN PART AS FRIVOLOUS AND IN PART FOR
LACK OF JURISDICTION; DENY MOTION TO STAY FURTHER
PROCEEDINGS; SANCTION WARNING ISSUED.




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