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Miller v. Barrett
Case: 24-10396 Document: 55-1 Page: 1 Date Filed: 02/10/2025
United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit
FILED No. 24-10396 February 10, 2025 Summary Calendar Lyle W. Cayce ____________ Clerk
Bradley B. Miller,
Plaintiff—Appellant,
versus
Amy Coney Barrett, In Her Official Capacity; Neil Gorsuch, In His Official Capacity; John G. Roberts, In His Official Capacity; Elena Kagan, In Her Official Capacity; Brett M. Kavanaugh, In His Official Capacity; Sonia Sotomayor, In Her Official Capacity; Clarence Thomas, In His Official Capacity; Ketanji Brown Jackson, In Her Official Capacity; Samuel A. Alito, Jr., In His Official Capacity,
Defendants—Appellees. ______________________________
Appeal from the United States District Court for the Northern District of Texas USDC No. 3:24-CV-335 ______________________________
Before Smith, Graves, and Engelhardt, Circuit Judges. Per Curiam:*
_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Case: 24-10396 Document: 55-1 Page: 2 Date Filed: 02/10/2025
No. 24-10396
Bradley B. Miller seeks to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of his civil rights complaint filed pursuant to 42 U.S.C. § 1983.1 Miller seeks a declaratory judgment that United States Supreme Court Rule 39.8 is unconstitutional and an injunction to bar its enforcement. Miller’s motion to proceed IFP and his appellate brief are construed as a challenge to the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(5). To proceed IFP, Miller must demonstrate both financial eligibility and a nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). An appeal presents nonfrivolous issues when it raises legal points that are arguable on the merits. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). If the appeal is frivolous, we may dismiss it sua sponte. See 5th Cir. R. 42.2; Baugh, 117 F.3d at 202 & n.24. Miller’s argument does not present a nonfrivolous issue for appeal. See Howard, 707 F.2d at 220. Consequently, he has not made the requisite showing for leave to proceed IFP on appeal. See Carson, 689 F.2d at 586. Accordingly, the IFP motion is DENIED, and the appeal is DISMISSED as frivolous. See Fed. R. App. P. 24(a); 5th Cir. R. 42.2.
_____________________ 1 Although both Miller and the district court relied on § 1983, his claim should be construed under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), because a Bivens action is analogous to an action under § 1983 except that § 1983 applies to constitutional violations by state actors and Bivens concerns violations by federal actors. See Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005).