Conference Calendar RODOLFO LEAL-RODRIGUEZ v. JOHN WKEY, III, Attorney at Law

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-41129
Conference Calendar
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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 19, 2008
Charles R. Fulbruge III
Clerk

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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 Leal-
Rodriguez’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

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No. 07-41129
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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.

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