Acosta-Solano v. Giles W. Dalby Correctional Facility

Case: 12-11237 Document: 00512485474 Page: 1 Date Filed: 12/31/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-11237 December 31, 2013
Summary Calendar
Lyle W. Cayce
Clerk
EDUARDO ACOSTA-SOLANO,
Plaintiff-Appellant
v.
GILES W. DALBY CORRECTIONAL FACILITY,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:12-CV-142
Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM: *
Eduardo Acosta-Solano, federal prisoner # 98019-198, is housed at the
Giles W. Dalby Correctional Facility (the Dalby Facility) in Post, Texas.
Acosta-Solano filed a complaint, pursuant to 42 U.S.C. § 1983, claiming his
constitutional rights had been violated at the Dalby Facility. The district court
characterized his claim as a Bivens 1 claim, and dismissed the complaint as
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 Federal Bureau of Narcotics, 403 U.S. 388
(1971).
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frivolous, finding that a Bivens actions could not be brought against a private
entity. On appeal, Acosta-Solano contends that the district court should have
given him an opportunity to amend his complaint prior to dismissing it as
frivolous.
We review the district court’s dismissal of a complaint as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. Brewster v.
Dretke, 587 F.3d 764, 767 (5th Cir. 2009). The magistrate judge conducted a
Spears 2 hearing, thereby giving Acosta-Solano an opportunity to amend his
complaint. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Further, at the
Spears hearing, Acosta-Solano declined to name any other individual as a
defendant in his complaint. Thus, Acosta-Solano’s argument that the district
court failed to give him an opportunity to amend his complaint is not supported
by the record.
Moreover, Acosta-Solano fails to explain in his brief how the Dalby
Facility or any other individual for that matter, violated his constitutional
rights. Although pro so 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).
Accordingly, whether construed as a § 1983 action or a Bivens action, Acosta-
Solano has abandoned his claims before this court by failing to raise them on
appeal. Therefore, his appeal is dismissed as frivolous. See 5TH CIR. R. 42.2.
The district court’s dismissal of his complaint and this court’s dismissal
of this appeal as frivolous count as two strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).
Acosta-Solano is cautioned that if he accumulates three strikes under
§ 1915(g), he may not proceed in forma pauperis in any civil action or appeal
2 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
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filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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