Kundra v. Gould, et al

* 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this opinion should not be published and is not precedent except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 19, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10914
Conference Calendar
FRANCIS TEJANI KUNDRA,
Plaintiff-Appellant,
versus
CATHERINE GOULD; CHIEF DISCIPLINARY COUNSEL; BOARD OF
DISCIPLINARY APPEALS; Judge KEITH DEAN,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-2518
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
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

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No. 06-10914
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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 (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 (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.
Therefore, it is ordered that Kundra pay one monetary sanction of
$100 to the clerk of this court for both the instant case and

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No. 06-10914
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Kundra v. Court of Criminal Appeals of Texas, No. 06-10391. 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.

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