Opinion
No. 06-10914, Conference Calendar.
June 19, 2007.
Francis Tejani Kundra, Houston, TX, pro se.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:05-CV-2518.
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
Francis Tejani Kundra, immigration detainee #A20661647, moves for leave to proceed in forma pauperis (IFP) on appeal and has filed a brief in support of his appeal. Kundra challenges the district court's dismissal of his 42 U.S.C. § 1983 claim against Catherine Gould as frivolous. The district court certified that an appeal would not be taken in good faith.
Kundra's IFP motion is construed as a challenge to the district court's certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Kundra does not challenge the district court's determination that Gould was not a state actor and, therefore, that issue is abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Nor did the district court err in determining that Kundra may not bring an action against Gould pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as a Bivens action requires that the defendant be a federal officer acting under color of federal law. See Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir. 1980).
Kundra has failed to show that his 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 omitted). Accordingly, the motion for leave to proceed IFP on appeal is denied, and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n. 24; 5th Cir. R. 42.2. Kundra's motion for appointment of counsel is also denied.
Kundra was previously warned that the filing or prosecution of frivolous appeals in the future may result in the imposition of sanctions. Kundra v. Austin, No. 06-10695, ___ Fed.Appx. ___, 2007 WL 1135308 (5th Cir. Apr. 17, 2007). Despite this warning, Kundra persists in the prosecution of the instant frivolous appeal as well as the frivolous appeal in Kundra v. Court of Criminal Appeals of Texas, No. 06-10391, ___ Fed.Appx. ___, 2007 WL 1800596 (5th Cir. 2007). Therefore, it is ordered that Kundra pay one monetary sanction of $100 to the clerk of this court for both the instant case and Kundra v. Court of Criminal Appeals of Texas, No. 06-10391, ___ Fed.Appx. ___, 2007 WL 1800596 (5th Cir. 2007). The clerk of this court and the clerks of all federal courts within this circuit are directed to refuse to file any pro se civil complaint or appeal by Kundra unless Kundra submits proof of satisfaction of this sanction. If Kundra attempts to file any further notices of appeal or original proceedings in this court without such proof the clerk will docket them for administrative purposes only. Any other submissions which do not show proof that the sanction has been paid will be neither addressed nor acknowledged. Kundra is also cautioned that future frivolous filings in this court or any court subject to this court's jurisdiction will subject him to additional sanctions.
MOTIONS DENIED; APPEAL DISMISSED; SANCTION IMPOSED.