     Case: 14-30405      Document: 00512890464         Page: 1    Date Filed: 01/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30405
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          January 6, 2015
MARK DOUGLAS HAMIL,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

WILLIAM NADER,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:13-CV-2766


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Mark Douglas Hamil, former Louisiana prisoner # 52309, appeals the
dismissal of his 42 U.S.C. § 1983 complaint against William Nader, Hamil’s
retained counsel in a prior state criminal case against Hamil for driving while
intoxicated (DWI). Hamil alleged that Nader provided ineffective assistance
of counsel in the DWI case by committing errors regarding video evidence
which purportedly demonstrated Hamil’s innocence; failing to adopt pro se


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30405     Document: 00512890464     Page: 2   Date Filed: 01/06/2015


                                  No. 14-30405

motions Hamil had filed; and failing to challenge the State’s evidence.
Reasoning that Nader did not qualify as a person acting under color of state
law for purposes of § 1983, the district court dismissed Hamil’s suit as frivolous
under 28 U.S.C. § 1915(e).
      In his first argument, Hamil reiterates his ineffective assistance claims
against Nader and contends that Nader was converted into a state actor
because he acted in concert with state officials to violate Hamil’s due process
and equal protection rights in the DWI case. A district court’s determination
that a case is frivolous under § 1915(e) is reviewed for abuse of discretion.
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). To state a claim under
§ 1983, a plaintiff must allege a violation of a right, privilege, or immunity
secured by the Constitution or laws of the United States and must demonstrate
that the alleged deprivation was committed by a person acting under color of
state law. Ellison v. De La Rosa, 685 F.2d 959, 960 (5th Cir. 1982).
      An attorney “does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a criminal
proceeding.”   Polk Cnty v. Dodson, 454 U.S. 312, 325 (1981); see Mills v.
Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988) (“[P]rivate
attorneys, even court-appointed attorneys, are not official state actors, and
generally are not subject to suit under section 1983”). However, a defense
attorney may be held liable under § 1983 if the attorney conspired with state
officials in the criminal case. Mills, 837 F.2d at 679.
      Hamil’s allegations against Nader do not support such a conspiracy. At
most, his allegations state claims of ineffective assistance of counsel based on
Nader’s independent judgments and actions in the course of representing
Hamil in the DWI case. See Mills, 837 F.2d at 679. Hamil has not shown that
the district court erred in determining that Nader did not qualify as a person



                                        2
    Case: 14-30405    Document: 00512890464     Page: 3   Date Filed: 01/06/2015


                                 No. 14-30405

acting under color of state law for purposes of § 1983. See Polk Cnty, 454 U.S.
at 324-25.
      Hamil also argues that we should hold that the dismissal of an earlier,
separate § 1983 case he filed was erroneous, should award him monetary
damages as relief in that case, and should expunge his illegally obtained DWI
conviction. Hamil did not appeal the judgment dismissing his earlier case as
frivolous. See Hamil v. Scott, No. 5:13-cv-694 (W.D. La. June 4, 2013). He may
not use this appeal as a substitute for an appeal in that case, and we will not
consider his contentions regarding the earlier case. See Bowles v. Russell, 551
U.S. 205, 214 (2007) (holding that a timely notice of appeal is a jurisdictional
requirement in a civil case).
      We note that the allegations in Hamil’s instant complaint are similar to
his allegations of ineffective assistance against Nader in his prior § 1983 case,
and his prior claims against Nader were likewise dismissed as frivolous on the
ground that Nader was not an actor under color of state law. We warn Hamil
that future frivolous, repetitive, or otherwise abusive filings will invite the
imposition of sanctions, which may include dismissal, monetary sanctions, and
restrictions on his ability to file pleadings in this court and any court subject
to this court’s jurisdiction. Hamil is further warned that, in order to avoid the
imposition of sanctions, he should review any pending appeals and actions and
move to dismiss any that are frivolous.
      Because Hamil was incarcerated at the time he filed the complaint in
this case, the district court’s dismissal of Hamil’s instant complaint counts as
a strike for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir.1996). The district court’s dismissal of Hamil’s earlier suit as
frivolous in Hamil, No. 5:13-cv-694, counts as another strike. See id. Hamil is
cautioned that if he accumulates three strikes under § 1915(g), he may not



                                       3
    Case: 14-30405       Document: 00512890464   Page: 4   Date Filed: 01/06/2015


                                  No. 14-30405

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).
      AFFIRMED; SANCTION WARNING ISSUED.




                                        4
