Leal-Rodriguez v. Keys, et al, No. 07-41129 (5th Cir. 2008)
Annotate this Case
Download PDF
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-41129 Conference Calendar August 19, 2008 Charles R. Fulbruge III Clerk RODOLFO LEAL-RODRIGUEZ Plaintiff-Appellant v. JOHN W KEY, III, Attorney at Law Defendant-Appellee Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:07-CV-288 Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* Rodolfo Leal-Rodriguez, federal prisoner # 12071-078, filed an in forma pauperis (IFP) civil rights lawsuit pursuant to 42 U.S.C. § 1983 against an attorney, John W. Key, III for accepting a $5,000 fee and not performing any service. The district court dismissed Leal-Rodriguez s lawsuit under 28 U.S.C. § 1915A(b)(1). The district court noted that amendment of the suit would not have saved it from dismissal. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 07-41129 Leal-Rodriguez argues that the district court erred in dismissing his complaint without allowing him to amend the complaint. This court reviews a dismissal as frivolous under § 1915A for abuse of discretion. Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). A dismissal for failure to state a claim under § 1915A is reviewed under the same de novo standard as dismissals under FED. R. CIV. P. 12(b)(6). Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). Because the district court found that Leal-Rodriguez s complaint was both frivolous and failed to state a claim, review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). Key, a private attorney, was not a state actor for purposes of § 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). Leal-Rodriguez does not argue that Key was a willful participant in joint activity with the state or its agents. Green v. State Bar of Texas, 27 F.3d 1083, 1088 (5th Cir. 1994) (quotation marks omitted). The district court was correct in finding that Leal-Rodriguez failed to state a claim for relief. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007); see also In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007), cert. denied, 128 S. Ct. 1230, 1231 (2008). A district court should not dismiss a pro se complaint without providing the plaintiff an opportunity to amend, unless it is obvious that the plaintiff has pleaded his best case, and a cause of action has not been established. See Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir. 1986). On appeal, Leal-Rodriguez has presented nothing to show that he could have prevented the dismissal of his claim against Key if allowed to amend his complaint. The appeal is without arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is dismissed. See 5TH CIR. R. 42.2. The district courts dismissal of LealRodriguez s complaint and this court s dismissal of his appeal both count as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 2 No. 07-41129 383, 387-88 (5th Cir. 1996). Leal-Rodriguez is cautioned that if he accumulates three strikes under § 1915(g), 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. § 1915(g). APPEAL DISMISSED; SANCTION WARNING ISSUED. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
