     Case: 13-40162      Document: 00512428425         Page: 1    Date Filed: 11/04/2013




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

                                                                                      FILED
                                    No. 13-40162                              November 4, 2013
                                  Summary Calendar
                                                                                 Lyle W. Cayce
                                                                                      Clerk
JACQUES TRENT HAMILTON,

                                                 Plaintiff-Appellant

v.

SALLY’S BEAUTY SUPPLIES; HEATHER MESSER,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 6:13-CV-51


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jacques Trent Hamilton, Texas prisoner # 1713684, moves to proceed in
forma pauperis (IFP) to appeal the dismissal as frivolous and for failure to
state a claim of his civil rights suit against Sally’s Beauty Supplies (Sally’s)
and its owner, Heather Messer, seeking damages for false imprisonment,
defamation of character, false accusation, harassment, and discrimination.
The district court dismissed the suit pursuant to 28 U.S.C. § 1915A(b)(1)


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40162

and (2), on the basis that Hamilton had not named a state actor as a defendant
and had not alleged the deprivation of a federal right. The district court
certified that the appeal had not been taken in good faith and denied Hamilton
permission to proceed IFP.
      By moving to proceed IFP, Hamilton is challenging the district court’s
certification that his 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.
      When a district court dismisses a complaint as both frivolous and for
failure to state a claim, as herein, our review is de novo. Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005). With respect to failure 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). A claim is facially
plausible if the plaintiff pleads facts that allow a court “to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
      “To plead a constitutional claim for relief under [42 U.S.C.] § 1983, [a
plaintiff must] allege a violation of a right secured . . . by the Constitution or
laws of the United States and a violation of that right by one or more state
actors.” Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994).
“For a nominally private individual’s conduct to meet the state action
requirement, there must be such a sufficiently close relationship between the
actor and the state that the actor can fairly be viewed as an agent of the state.”
Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544, 552 (5th Cir.



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1988).   The Supreme Court has set forth a two-part test for determining
whether state action exists. Under the first part of the test, a court must
determine whether the alleged constitutional deprivation has resulted from
“‘the exercise of a right or privilege having its source in state authority.’” Id.
at 554 (quoting Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982)). Under
the second part of the test, the court must ascertain whether the private party
may fairly be characterized as a “state actor” based on the facts specifically
before the court.     Id. (internal quotation marks and citation omitted).
Hamilton’s complaint contains no facts under which Sally’s can properly be
characterized as a state actor, either in its own right or by its close association
with the state. Cf. Morris v. Dillard Dep’t Stores, 277 F.3d 743, 749 (5th Cir.
2001) (stating that a merchant will not be characterized as a state actor under
§ 1983 unless the conduct on the part of the guard or officer giving rise to the
claimed deprivation was based solely on the merchant’s suspicion without an
independent investigation by the officer). As such, Sally’s is not a state actor
and has no § 1983 liability. See Polk County v. Dodson, 454 U.S. 312, 324-25
(1981) (noting additionally that § 1983 will not support a claim based on a
respondent superior theory of liability). Hamilton does not argue in his brief
that Messer is a state actor; consequently, any such issue with regard to this
defendant is waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Finally, in the event we hold the district court’s dismissal appropriate,
Hamilton asks for permission to amend his complaint to name the State of
Texas as a defendant in his false arrest and false imprisonment claims. Texas,
however, is afforded Eleventh Amendment immunity from suit by an
individual; therefore, any § 1983 claims against it would necessarily fail. See
McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004). As such,
the district court did not abuse its discretion in not affording Hamilton the



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                                 No. 13-40162

opportunity to amend his complaint, and he has shown no reason why the suit
should not have been dismissed as frivolous and for failure to state a claim.
See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
      Hamilton’s appeal lacks arguable merit and is therefore frivolous.
See Howard, 707 F.2d at 220. Accordingly, his motion for leave to proceed
IFP on appeal is denied, and his 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
Hamilton’s § 1983 complaint as frivolous and for failure to state a claim counts
as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). The dismissal of this appeal as frivolous also
counts as a strike. See id. Hamilton is warned that if he accumulates three
strikes, he will not be able to 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). His motion to expedite his
appeal is DENIED.
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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