     Case: 17-41017      Document: 00514684572         Page: 1    Date Filed: 10/16/2018




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

                                                                                 FILED
                                    No. 17-41017                            October 16, 2018
                                  Summary Calendar                            Lyle W. Cayce
                                                                                   Clerk

DARLENE C. AMRHEIN,

                                                 Plaintiff-Appellant

v.

UNITED STATES OF AMERICA, Civil Process Clerk, Loretta Lynch;
DONALD JOHN TRUMP, SR., President; MIKE PENCE, Vice President;
NOEL FRANCISCO, United States Solicitor General; JEFFERSON B.
SESSIONS, III, United States Attorney General, et al,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CV-223


Before JONES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Darlene C. Amrhein has applied for leave to proceed in forma pauperis
(IFP) in this appeal from the district court’s judgment dismissing her
complaint in part pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous and
malicious and in part pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-41017

upon which relief may be granted. The district court determined that the
appeal was not taken in good faith, and it decertified Amrhein’s IFP status.
      A movant for IFP on appeal must show that she is a pauper and that she
will present a nonfrivolous issue on appeal. Carson v. Polley, 689 F.2d 562,
586 (5th Cir. 1982); § 1915(a)(1). We assume without deciding that Amrhein
is a pauper.    By moving this court for leave to proceed IFP, Amrhein is
challenging the district court’s determination that her appeal is not taken in
good faith. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This rule
applies to nonprisoners. Id. at 199-200. This court’s inquiry into 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).
      A district court must sua sponte dismiss an IFP complaint in a civil
action at any time if it determines that the action is frivolous or malicious, fails
to state a claim upon which relief may be granted, or seeks monetary relief
from a defendant who is immune. § 1915(e)(2)(B). A complaint is malicious if
it duplicates claims involving the same series of events and allegations of many
of the same facts asserted by the same plaintiff in prior or pending litigation
and fails to state a claim when it does not “contain 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); Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998); Pittman v.
Moore, 980 F.2d 994, 994-95 (5th Cir. 1993). Contrary to Amrhein’s assertions,
a § 1915(e)(2)(B) dismissal may be prior to service of process on the defendants.
See Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986); see also Newsome
v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (applying § 1915(e) to non-prisoner).




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                                  No. 17-41017

      Amrhein asserts that this appeal should be decided by another circuit
court. She contends that the court has a conflict of interest because the court
and several of its judges and clerk of court were named as defendants in this
case based on this court’s decision in Amrhein v. La Madeleine, Inc., 589 F.
App’x 258 (5th Cir. 2015). These assertions are frivolous. Adverse judicial
rulings alone do not support a claim of bias unless they “reveal an opinion
based on an extrajudicial source or if they demonstrate such a high degree of
antagonism as to make fair judgment impossible.” United States v. Scroggins,
485 F.3d 824, 830 (5th Cir. 2007); see also Liteky v. United States, 510 U.S. 540,
555 (1994); United States v. Mizell, 88 F.3d 288, 299-300 (5th Cir. 1996) (panel
members are not required to recuse themselves merely because of an adverse
decision in a prior related matter). Amrhein has not made such a showing.
      We note that this court’s judges are entitled to absolute immunity for
their judicial acts and its clerk of court is entitled to absolute or qualified
immunity. See Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001); Boyd v. Biggers,
31 F.3d 279, 284 (5th Cir. 1994). Amrhein makes no effort to show that the
district court erred in concluding that this court and its judges and clerk are
immune.    Amrhein’s main complaint in this appeal is that United States
District Judge Mazzant and United States Magistrate Judge Nowak were
unfairly biased and retaliated against her because of her age, gender, and
indigency; that they had conflicting interests; and that they should have
recused themselves. Amrhein has not shown that the district court abused its
discretion in denying her recusal motion. See Garcia v. Laredo, 702 F.3d 788,
794 (5th Cir. 2012); see also Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir.
2003).
      Amrhein asserts that the district court erred in determining that this
case is malicious because it relates to matters that have already been litigated.



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She argues that the judgment affirmed by this court in Amrhein, 589 F. App’x
at 259-60, is “void” because the district court’s order of dismissal was rendered
prior to service of process on the defendants. Again, such dismissals are not
improper. See Green, 788 F.2d at 1119. Amrhein insists that she is entitled to
an award of “long term disability” for her work-related injury. The same claim
was at the root of the prior case and its state court antecedent. See Amrhein,
589 F. App’x at 259; see also Amrhein v. La Madeleine, Inc., 2013 WL 839227
(Tex. App. 2013).
      Thus, Amrhein has not shown that there is a non-frivolous argument
that the district court abused its discretion in dismissing the instant complaint
in part as frivolous and malicious pursuant to § 1915(e)(2)(B)(i) because it
relates to the same series of events and allegations of many of the same facts
asserted by her in her prior lawsuit. See Pittman, 980 F.2d at 994-95. Nor has
she shown that the district court erred in dismissing the complaint in part
pursuant to § 1915(e)(2)(B)(ii) because it failed to state a claim upon which
relief may be granted. See Black, 134 F.3d at 733-34.
      Leave to proceed IFP on appeal is DENIED, and the appeal is
DISMISSED AS FRIVOLOUS. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202
n.24. We WARN Amrhein again that future frivolous, repetitive, or otherwise
abusive filings will result in the imposition of sanctions, which may include
dismissal, monetary sanctions, and restrictions on her ability to file pleadings
in this court and any court subject to this court’s jurisdiction. Amrhein’s
motion to stay and continue the appeal is DENIED AS MOOT.




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