Zhao v. an Unknown Agent of Central Intelligence Agency , 407 F. App'x 785 ( 2011 )

Case: 10-20117 Document: 00511338860 Page: 1 Date Filed: 01/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2011
No. 10-20117
Summary Calendar Lyle W. Cayce
Clerk
QIAN IBRAHIM ZHAO,
Plaintiff-Appellant
v.
AN UNKNOWN AGENT OF THE CENTRAL INTELLIGENCE AGENCY;
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY; SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF
NARCOTICS; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
HOUSTON FIELD OFFICE; KENNETH LANDGREBE,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-1963
Before GARWOOD, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Qian Ibrahim Zhao appeals the district court’s judgment dismissing his
civil rights action for failure to state a claim and because the action was time
barred. Zhao explains in his brief that he no longer seeks to proceed against
the Secretary of the Department of Homeland Security, whom he named as a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 10-20117
defendant in his first amended complaint. Accordingly, we need not address the
district court’s dismissal of the claims against her. See Easton v. Sanders, 67
F.3d 97, 99 & n.2 (5th Cir. 1995). Liberally construed, Zhao’s argument is that
the district court erred by failing to permit him to file his second amended
complaint raising additional claims against two new defendants—U.S.
Immigration and Customs Enforcement’s Houston Field Office and one of its
employees. See F ED. R. C IV. P. 15(a)(2). The district court did not explicitly
decide whether Zhao should have been granted leave to amend. However, we
construe the court’s ruling granting the motion to dismiss as implicitly denying
leave, see Norman v. Apache Corp., 19 F.3d 1017, 1021-22 (5th Cir. 1994), a
decision we review for abuse of discretion, Ashe v. Corley, 992 F.2d 540, 542-43
(5th Cir. 1993).
The district court’s reasons for declining to allow Zhao leave to amend are
apparent from the record. See id. The court explained in its order dismissing
the action that the statute of limitations bars Zhao’s civil rights and common law
tort claims and that he failed to state a claim under the new theories he
purported to raise in the second amended complaint. On appeal, Zhao argues for
the first time that the “continuing violations doctrine” renders his claims timely.
Zhao fails to explain, however, why he could not have brought this issue to the
attention of the district court or why refraining from addressing it now would
result in a miscarriage of justice; accordingly, we decline to consider this
argument. See Matter of HECI Exploration Co., Inc., 862 F.2d 513, 521-22 (5th
Cir. 1988). Moreover, Zhao does not argue on appeal that his second amended
complaint stated a claim under any of the new theories that he advanced in that
pleading; thus, has abandoned those issues. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
Zhao also seeks to add a claim that he is an “innocent owner” under
21 U.S.C. §§ 801, 881, but he may not raise a new claim on appeal that he did
not raise in the district court unless failure to address the claim would result in
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No. 10-20117
a clear miscarriage of justice. See Black v. North Panola School Dist., 461 F.3d
587, 593 (5th Cir. 2006). There is no showing of clear miscarriage of justice. By
failing to move for recusal in the district court, Zhao has also abandoned any
argument that the district judge should have recused himself . See Andrade v.
Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003). Finally, Zhao’s challenge to the
multidistrict litigation panel’s decision refusing to transfer his case is not
properly before this court. See 28 U.S.C. § 1407(e).
The judgment of the district court is AFFIRMED.
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