Gricco v. Padova

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 24, 2007
No. 07-30340
Conference Calendar Charles R. Fulbruge III
Clerk
CARMEN GRICCO
Plaintiff-Appellant
v.
JOHN R. PADOVA; BRIAN ASTON; FREDRICK MENIFEE
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:06-CV-1988
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Carmen Gricco appeals the 28 U.S.C. § 1915A dismissal as frivolous and
for failure to state a claim of his Federal Tort Claims Act (FTCA) lawsuit. We
review the district court’s dismissal de novo. Ruiz v. United States, 160 F.3d
273, 275 (5th Cir. 1998).
If his brief is liberally construed, Gricco renews his argument that his
lawsuit is brought exclusively under the FTCA, as well as his claims that his
*
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should not be published and is not precedent except under the limited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. 07-30340
criminal judgment is void, that he should be immediately released from prison,
and that he is entitled to monetary damages. As the district court determined,
Gricco’s FTCA complaint fails as he did not seek to hold liable the United States,
the proper defendant for such an action. See 28 U.S.C. § 1346(b); Atorie Air, Inc.
v. Fed. Aviation Admin., 942 F.2d 954, 957 (5th Cir. 1991). Gricco has
abandoned by failing to brief any challenge to the district court’s determination
that he has not sued the proper party. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, dismissal was
appropriate.
The instant appeal is without arguable merit and is therefore dismissed
as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2. Gricco is cautioned that the dismissal by the district court of his suit
and the dismissal of his appeal as frivolous count as two strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Gricco is cautioned that if he accumulates three strikes under § 1915(g), 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 § 1915(g). Gricco’s motion for the appointment
of counsel is denied.
APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING
ISSUED.
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