     Case: 14-10490      Document: 00513056798         Page: 1    Date Filed: 05/27/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10490
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 27, 2015
AUDREY COLEMAN,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

TODD SELLARS, Dallas County U.S. Assistant District Attorney,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CV-1648


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Audrey Coleman, proceeding pro se, moves to proceed in forma pauperis
(IFP) to appeal the dismissal of her 42 U.S.C. §§ 1983 and 1985 complaint
against Assistant Dallas County District Attorney Todd Sellars. Coleman
alleged that Sellars violated her rights under the Fourth, Fifth, Seventh, and
Fourteenth Amendments by conspiring with and advising a Dallas County
constable and officers that they could proceed to evict her from her Grand


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10490

Prairie, Texas residence despite an automatic stay resulting from both her
prior Chapter 7 bankruptcy proceeding and her removal of the forcible detainer
action from state court to federal court. The district court granted in part
Sellars’s motion to dismiss for failure to state a claim and dismissed Coleman’s
federal claims with prejudice as frivolous under 28 U.S.C. § 1915(e)(2)(B).
Coleman’s state law claims were dismissed without prejudice. The district
court certified that the appeal had not been taken in good faith and denied
Coleman permission to proceed IFP.
      By moving to proceed IFP, Coleman is challenging the district court’s
certification that her appeal is not taken in good faith. 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; 5TH CIR. R. 42.2.
      Because the district court dismissed the complaint as both frivolous and
for failure to state a claim, we will review the matter de novo. See Geiger v.
Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (§ 1915(e)(2)(B)(i)); Beavers v.
Metropolitan Life Ins. Co., 566 F.3d 436, 438-39 (5th Cir. 2009) (FED. R. CIV.
P. 12(b)(6)). To state a claim, “a complaint must 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). Contrary to Coleman’s argument, the district court was not
required to allow her to conduct discovery prior to dismissing her complaint.
See § 1915(e)(2); Southwestern Bell Tel., LP v. City of Houston, 529 F.3d 257,
263 (5th Cir. 2008).




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                                 No. 14-10490

      In her brief, Coleman challenges the district court’s dismissal of her
§ 1983 claims against Sellars based upon his participation in her November
12, 2012 eviction. None of her arguments suffices to show a nonfrivolous
appellate claim. First, Coleman’s allegations do not raise a viable Fourth
Amendment claim, as her filing of a notice of removal of the state court
detainer action—in which a default judgment of possession had been entered
eight months earlier and a writ of possession to enforce the judgment had been
issued several days earlier—does not render Sellars’s directive to proceed with
the eviction an unreasonable seizure. See Soldal v. Cook Cnty., Ill., 506 U.S.
56, 71 (1992); Freeman v. City of Dallas, 242 F.3d 642, 653-54 (5th Cir. 2001).
Likewise, she fails to state a claim that Sellars violated her Fifth Amendment
right to due process, as that amendment pertains to federal, not state, actors.
See Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000).
      Coleman also maintains that Sellars’s participation in the eviction
deprived her of her right to a jury trial, as guaranteed by the Seventh
Amendment. However, Coleman does not explain how her right to a jury trial
could have been violated by Sellars’s actions, where she was served with the
forcible detainer suit and made no appearance, resulting in a default judgment
taken against her months before her bankruptcy proceedings and notice of
removal.    Moreover, the Supreme Court has held that the Seventh
Amendment’s guarantee of a civil jury does not apply to the States.
Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 217 (1916); see
McDonald v. City of Chicago, 561 U.S. 742, 765 n.13 (2010).
      In addition, Coleman does not show that the district court erred in
dismissing her Fourteenth Amendment due process claim. Nothing in the
complaint suggests any deficiency in the notices provided to her, which
Coleman acknowledges were posted on the door of her residence more than



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24 hours prior to the eviction.      Further, as noted by the district court,
Coleman’s due process claim is an impermissible challenge to the state court
judgment that awarded possession of her residence to a bank. See Hale v.
Harney, 786 F.2d 688, 691 (5th Cir. 1986). In her last § 1983 claim, Coleman
contends that Sellars acted with reckless negligence because he did not have
the authority or jurisdiction to order her removal from the residence. This
claim, too, fails to state a claim upon which relief may be granted; negligent
conduct is not actionable under § 1983. See Marsh v. Jones, 53 F.3d 707, 711-
12 (5th Cir. 1995).
      Coleman also contends that Sellars conspired to enforce the detainer
action and eviction and deprive her of her property. However, she alleged no
facts regarding a discriminatory animus or an agreement between Sellars and
any other person, as required by § 1985(3). See Bryant v. Military Dep’t of
Miss., 597 F.3d 678, 687 (5th Cir. 2010); Green v. State Bar of Tex., 27 F.3d
1083, 1089 (5th Cir. 1994). Thus, the district court did not err in determining
that Coleman failed to state a claim for conspiracy under § 1985(3).
      Finally, Coleman argues that the district court should not have
dismissed her claims alleging abuse of process, fraud, negligence, negligent
misrepresentation, trespass, assault, and intentional infliction of emotional
distress. A district court may decline to exercise supplemental jurisdiction
over state law claims if it has dismissed all claims over which it has original
jurisdiction. 28 U.S.C. § 1367(c)(3). Coleman has not shown any abuse of
discretion. See Batiste v. Island Records Inc., 179 F.3d 217, 226 (5th Cir. 1999).
      Coleman’s appeal is without arguable merit and is thus frivolous.
Accordingly, Coleman’s request for IFP status is denied, and her appeal is
dismissed. See Howard, 707 F.2d at 219-20; 5TH CIR. R. 42.2. Additionally,
Coleman has a history of filing numerous duplicative and frivolous filings in



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                                 No. 14-10490

the district court and this court challenging her eviction. As a result, Coleman
is warned that any further filing of repetitious or frivolous pleadings involving
the November 12, 2012 eviction may result in the imposition of sanctions
against her. These sanctions 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.
      MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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