Adongo v. State of Texas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 6, 2005
Charles R. Fulbruge III
Clerk
No. 04-10714
Summary Calendar
CALEB OUMA ADONGO
Plaintiff - Appellant
v.
STATE OF TEXAS, Tarrant County Department of Community
Supervision; STATE OF FLORIDA, Department of Corrections,
Volusia County Commissioner; EMBRY RIDDLE UNIVERSITY, Campus
Safety Florida
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CV-1211-Y
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Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.
PER CURIAM:*
Caleb Ouma Adongo, Texas inmate #0405821, proceeding pro se
and in forma pauperis (“IFP”), appeals the district court’s final
judgment that dismissed his 42 U.S.C. § 1983 complaint. Adongo
contends that the district court erred by dismissing his claims
against the Tarrant County, Texas, Department of Community
Supervision and the Volusia County, Florida, Department of
Corrections. He argues that the Eleventh Amendment does not
*
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this opinion should not be published and is not precedent except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. 04-10714
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prohibit suits under 42 U.S.C. § 1983 against municipal
corporations.
We review Adongo’s contentions de novo. Cozzo v. Tangipahoa
Parish Council, 279 F.3d 273, 280 (5th Cir. 2002); Ruiz v. United
States, 160 F.3d 273, 275 (5th Cir. 1998). The district court
did not dismiss as barred by the Eleventh Amendment claims
against a municipal corporation. The district court dismissed on
immunity grounds claims against the State of Florida, Department
of Corrections and the State of Texas, Tarrant County Department
of Community Supervision. Eleventh Amendment immunity bars
claims under 42 U.S.C. § 1983 against these entities. See Oliver
v. Scott, 276 F.3d 736, 742 n.5 (5th Cir. 2002); Hardin County
Cmty. Supervision and Corrs. Dep’t v/ Sullivan, 106 S.W.3d 186,
187 (Tex. App. 2003); Howlett v. Rose, 496 U.S. 356, 365 (1990);
Hill v. Dep’t of Corrs., 513 So. 2d 129, 130, 133 (Fla. 1987).
Adongo has not adequately briefed an argument challenging
the district court’s reasons for dismissing without prejudice for
lack of personal jurisdiction the claims against the unnamed
Volusia County Commissioner, the Department of Campus Safety, and
the Embry-Riddle Aeronautical University. Accordingly, he has
abandoned any appeal of this issue. FED. R. APP. P. 28; Grant v.
Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Adongo asserts that he was denied due process during his
arrest, detention, and revocation proceedings. He contends that
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Texas delayed in completing his extradition, the delay
constituted a waiver, his arrest was made without a warrant, he
was denied counsel, the motion to revoke was invalid and
defective, his probation officers refused to appear at the
revocation hearing, he was denied the right to confront his
probation officers regarding the charged violations, and that
favorable evidence was destroyed. As the district court
determined, under Heck v. Humphrey, 512 U.S. 477, 486 (1994), a
favorable ruling on these 42 U.S.C. § 1983 claims would call into
question the validity of the judgment that revoked Adongo’s
probation.
Heck is applicable to 42 U.S.C. § 1983 claims that challenge
revocation proceedings. See Littles v. Bd. of Pardons and
Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995); McGrew v. Texas
Bd. of Pardons and Paroles, 47 F.3d 158, 161 (5th Cir. 1995).
The district court did not err when it determined that Adongo may
not obtain relief under 42 U.S.C. § 1983 because he has not shown
that the judgment that revoked his probation is reversed or
otherwise called into question. See Heck, 512 U.S. at 486-87;
Littles, 68 F.3d at 123.
Accordingly, the judgment is AFFIRMED. The district court’s
dismissal of Adongo’s complaint counts as a strike for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387 (5th Cir. 1996). Adongo is cautioned that once he
accumulates three strikes, he may not proceed IFP in any civil
No. 04-10714
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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; SANCTION WARNING ISSUED.