Maxwell v. Saleh

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-10707
Conference Calendar
WILLIE LEE MAXWELL,
Plaintiff-Appellant,
versus
SAM SALEH, County Court Judge,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:05-CV-71
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Willie Lee Maxwell, Texas inmate # 1163609, appeals the
dismissal as frivolous and for failure to state a claim of his in
forma pauperis (IFP) 42 U.S.C. § 1983 complaint. Maxwell sued
Sam Saleh to recover the retainer paid to him to act as defense
counsel for Maxwell and his wife; after the payment, Saleh
allegedly informed them that he could no longer represent them
because he had been elected judge. Maxwell argues that the
district court abused its discretion by not notifying him of his

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No. 05-10707
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complaint’s deficiencies and providing an opportunity to amend.
He also argues that his suit was not untimely. He further
asserts that the actions of Saleh, and others, were under color
of state law.
Attorneys do not act under color of state law when they
perform a lawyer’s traditional function as defense counsel in a
criminal proceeding. See Polk County v. Dodson, 454 U.S. 312,
325 (1981). Thus, we need not address Maxwell’s contentions that
his § 1983 complaint was timely because, even if the complaint is
timely, Saleh is not a state actor for § 1983 purposes. Maxwell
has shown no error in the district court’s dismissal of his
complaint without affording him an opportunity to amend. See
Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999).
Maxwell’s appeal lacks arguable merit and is dismissed as
frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The dismissal of this appeal and the
dismissal by the district court count as two strikes for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996). Maxwell is cautioned 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). Maxwell’s motion for production
of documents is denied.
APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION DENIED.

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