Ramirez v. Guzik ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10903
Summary Calendar
SALVADORE RAMIREZ,
Plaintiff-Appellant,
versus
BOB GUZIK, Warden,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CV-409-Y
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March 27, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Salvadore Ramirez (federal prisoner #07605-040) appeals the
district court’s final judgment dismissing his Bivens1 action as
frivolous under 28 U.S.C. §§ 1915(e)(2)(B)(I), 1915A(b)(1). He
argues that the district court erred in dismissing his complaint
for the sole reason that he listed Warden Bob Guzik as the only
named defendant. He maintains that Warden Guzik was a properly
named defendant based on his “executive” position at the Federal
*
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that this opinion should not be published and is not precedent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.
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
No. 00-10903
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Medical Center in Fort Worth, Texas. Alternatively, he argues
that the district court should have at least given him an
opportunity to amend his complaint prior to dismissal.
As the district court noted, Ramirez has not alleged that
Warden Guzik was personally involved in the denial of adequate
medical treatment or that Guzik implemented a policy which
resulted in the denial of adequate medical treatment. See
Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
Accordingly, the portion of the district court’s final judgment
dismissing Ramirez’s claim against Warden Guzik as frivolous is
AFFIRMED. Because Ramirez has not challenged it on appeal, we
also AFFIRM the portion of the district court’s final judgment
dismissing any potential claims against the Federal Bureau of
Prison without prejudice to his right to seek relief under the
Federal Tort Claims Act. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993)(stating that issues not briefed on appeal
are abandoned).
We nevertheless conclude that the district court abused its
discretion in dismissing Ramirez’s complaint without giving him
an opportunity to amend. See Parker v. Fort Worth Police Dep’t,
980 F.2d 1023, 1025-27 (5th Cir. 1993)(concluding, under similar
circumstances, that the district court abused its discretion in
dismissing plaintiff’s complaint under former 28 U.S.C. § 1915(d)
without first granting plaintiff leave to amend); Dayse v.
Schuldt, 894 F.2d 170, 174 (5th Cir. 1990)(stating that, when a
pro se plaintiff raises a constitutional claim but inadvertently
sues the wrong party, he should be given leave to amend to sue
No. 00-10903
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the appropriate party or parties). Accordingly, we VACATE the
district court’s final judgment in part and REMAND the case for
further proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.