Donovan Evans v. Jimmie Cessna

627 F. App'x 371

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 22, 2015
• Docket: 14-60883
• Status: Unpublished

Opinion

PER CURIAM: *

Donovan Evans, a pretrial detainee at the Lauderdale County Detention Center, filed a 42 U.S.C. § 1983 action complaining of a vehicle accident that occurred prior to his detention. Evans alleged that Jimmie C. Cessna struck him with a motor vehicle while Evans was riding a bicycle. Pursuant to 28 U.S.C. § 1915(e)(2)(B), the district court dismissed Evans’s action for failure to state a claim upon which relief could be granted.

A district court is required to dismiss a prisoner’s civil rights complaint if it is frivolous, malicious, or fails to state a claim for relief. § 1915(e)(2)(B)(i) & (ii). Evans does not challenge the reasons provided by the district court for dismissing his § 1983 action against Cessna, who is not a state actor. Evans also does not challenge the district court’s determination that diversity jurisdiction did not exist over his negligence claim, nor the court’s decision declining to exercise supplemental jurisdiction over any state law claims. Because Evans does not challenge the district court’s reasons for dismissing his complaint, he has abandoned the claims on appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993).

The district court’s dismissal of Evans’s complaint counts as a strike for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996); Patton v. Jefferson Correctional Center, 136 F.3d 458, 462-63 (5th Cir.1998). Evans has already accumulated at least one other strike. See Evans v. State of Mississippi, No. 3:13-cv-00996 (S.D. Miss. April 7, 2014). Evans is warned that, if he accumulates three strikes, then he may not 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).

AFFIRMED; SANCTION WARNING ISSUED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.