Ganesan v. James , 115 F. App'x 670 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 19, 2004
Charles R. Fulbruge III
Clerk
No. 03-11187
Summary Calendar
APPARAJAN GANESAN,
Plaintiff-Appellant,
versus
SHIRLEY JAMES, Administrative Tech II; MICHAEL UPSHAW, Warden;
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:02-CV-129
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Apparajan Ganesan, Texas prisoner # 904088, appeals the
dismissal of his civil rights action and the imposition of
Rule 11 sanctions. The district court dismissed, as frivolous,
Ganesan’s claims against Warden Michael Upshaw (Upshaw) and Janie
Cockrell (Cockrell) and certain claims against Shirley James
(James), after finding that Ganesan had not demonstrated the
denial of a constitutional right. The district court also found
*
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this opinion should not be published and is not precedent except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.
No. 03-11187
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that Ganesan made misrepresentations calculated to mislead the
court and issued an order to show cause why he should not be
sanctioned. After Ganesan failed to respond to the show cause
order, the district court dismissed the remainder of Ganesan’s
claims, issued a monetary sanction of $100, and barred Ganesan
from making any subsequent filings until the sanction was
satisfied or judicial approval was previously obtained.
On appeal, Ganesan does not provide any legal arguments or
authority challenging the district court’s determinations that
Ganesan has not demonstrated the denial of a constitutional right
as to Upshaw and Cockrell and that sanctions were appropriate
because Ganesan made misrepresentations to the court. Although
pro se briefs are afforded liberal construction, Haines v.
Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must
brief arguments in order to preserve them. Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993). Because Ganesan fails to
address the district court’s factual basis for dismissing these
claims as frivolous and issuing sanctions, he has abandoned these
issues. See id.The claims Ganesan has not abandoned are his claims that, on
April 25, 2002, James was verbally abusive, that, on April 25,
2002, James threatened Ganesan’s physical safety, and that, after
April 25, 2002, and in retaliation for a previously filed
lawsuit, James denied Ganesan access to the courts. As for
Ganesan’s claim of verbal abuse, mere allegations of verbal abuse
No. 03-11187
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do not present an actionable § 1983 claim. Siglar v. Hightower,
112 F.3d 191, 193 (5th Cir. 1997); Bender v. Brumley, 1 F.3d 271,
274 n.4 (5th Cir. 1993). As for Ganesan’s claim that James
threatened his physical safety, a review of record reveals a lack
of facts to support this allegation, and the district court,
therefore, did not abuse its discretion in dismissing this claim.
As for Ganesan’s claim that James retaliated against him and
denied him access to the courts by James’ refusal to deliver
Ganesan’s mail to him and James’ denial of a protective escort
for Ganesan to the mailroom to pick up his mail, Ganesan must
show that he has been denied a specific constitutional right.
See Tighe v. Wall, 100 F.3d 41, 43 (5th Cir. 1996). A review of
the record reveals that Ganesan refused to pick up his mail from
the mailroom. There is no evidence that the mailroom failed to
inform Ganesan that he had mail in the mailroom or that the
mailroom refused to give Ganesan his mail when he came to the
mailroom. Therefore, because Ganesan did not make the necessary
showing of a violation of a constitutional right, the district
court did not abuse its discretion in dismissing, as frivolous,
Ganesan’s claims. See Arnaud v. Odom, 870 F.2d 304, 307 (5th
Cir. 1989) (Mere “conclusory allegations” are not sufficient to
establish a § 1983 claim.).
The district court’s dismissal of Ganesan’s complaint and
this court’s affirmance count as one “strike” for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
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387-88 (5th Cir. 1996). Ganesan is cautioned that if he
accumulates three “strikes,” he will not be able to proceed
in forma pauperis 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 28 U.S.C.
§ 1915(g).
AFFIRMED; SANCTIONS WARNING ISSUED.