Nick Aguilar v. State of Texas , 612 F. App'x 245 ( 2015 )

Case: 14-20645 Document: 00513151281 Page: 1 Date Filed: 08/12/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-20645 August 12, 2015
Summary Calendar
Lyle W. Cayce
Clerk
NICK ALFRED AGUILAR,
Plaintiff - Appellant
v.
STATE OF TEXAS,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-3278
Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
Proceeding pro se, Nick Alfred Aguilar, Texas prisoner # 324831, on
parole from an enhanced life sentence for possession of heroin, challenges the
dismissal of his pro se civil-rights complaint against the State of Texas. In the
complaint, he claimed his incarceration (of a heroin addict) violated the Eighth
Amendment’s prohibition against cruel and unusual punishment because the
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 14-20645 Document: 00513151281 Page: 2 Date Filed: 08/12/2015
No. 14-20645
State acted with deliberate indifference. A dismissal for failure to state a claim
is reviewed de novo. E.g., Varela v. Gonzales, 773 F.3d 704, 707 (5th Cir. 2014).
Aguilar’s contention, that the Attorney General of Texas lacked standing
to file the motion to dismiss his complaint, fails because, under Texas law, the
Texas Attorney General serves as the common legal representative of State
agencies. E.g., Sierra Club v. City of San Antonio, 115 F.3d 311, 314 (5th Cir.
1997).
Aguilar neither recognizes nor challenges the district court’s conclusions
that his complaint was barred by the Eleventh Amendment and Heck v.
Humphrey, 512 U.S. 477 (1994). Accordingly, he has abandoned any challenge
to those conclusions. E.g., Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987). Furthermore, Aguilar’s reliance on Robinson v.
California, 370 U.S. 660, 666-67 (1962), is misplaced because he was not
convicted under Texas law based on his use of heroin, but because he possessed
it.
AFFIRMED.
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