Case: 13-10438 Document: 00512469996 Page: 1 Date Filed: 12/12/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-10438 December 12, 2013
Summary Calendar
Lyle W. Cayce
Clerk
EVANGELOS PAGONIS, also known as Angelos Pagonis,
Plaintiff-Appellant
v.
SAN ANTONIO POLICE DEPARTMENT CHIEF OF POLICE; B. WILLIAMS,
Detective San Antonio Police Department; UNITED STATES DEPARTMENT
OF HOMELAND SECURITY - IMMIGRATION AND CUSTOMS
ENFORCEMENT AGENTS; ANDREA DOAKES, Agent, Immigration and
Customs; UNNAMED AGENT; WILLIAM L BASKETTE; NFN WALLACE,
Garza West Unit Classifications Texas Department of Criminal Justice Officer;
NFN MESSER, Dalhart Unit Classifications Officer; JONI WHITE, Huntsville
Head Classification Officer,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:13-CV-23
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-10438 Document: 00512469996 Page: 2 Date Filed: 12/12/2013
No. 13-10438
Evangelos Pagonis, Texas prisoner # 1626253, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1) as frivolous and
for failure to state a claim upon which relief could be granted. In relation to
his appeal, Pagonis has filed motions to amend his appellate brief, for the
appointment of counsel, to supplement the record on appeal, and for leave to
supplement his appellate brief with an attachment. Pagonis’s motion to amend
his brief is granted. His remaining motions are denied.
We review de novo the dismissal of Pagonis’s complaint, accepting the
facts alleged in the complaint as true and viewing them in the light most
favorable to the plaintiff. See Green v. Atkinson, 623 F.3d 278, 280 (5th Cir.
2010); Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003).
In his §1983 complaint, Pagonis argued that the defendants denied him
his right, as a foreign national, to consular access as required under Article
36(1)(b) of the Vienna Convention on Consular Relations even though he was
identified as a foreign national and placed under an immigration detainer. He
asserted that his lack of consular access deprived him of a fair trial. Pagonis
sought reversal and remand and damages.
Pagonis does not argue on appeal that the district court erred in
rejecting, for failure to state a claim upon which relief could be granted, his
request for reversal and remand. Accordingly, he has abandoned any claim he
might have raised challenging the district court’s determination that his sole
federal remedy for contesting his criminal conviction is through 28 U.S.C.
§ 2254. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Pagonis does challenge the district court’s dismissal of his claim for
damages. He notes that other circuits have held that the Vienna Convention
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Case: 13-10438 Document: 00512469996 Page: 3 Date Filed: 12/12/2013
No. 13-10438
provides a private right of enforcement. However, we have held that Article
36 of the Vienna Convention did not create “judicially enforceable rights of
consultation between a detained foreign national and his consular office.”
United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001). Pagonis has
not shown that the district court erred by dismissing his argument as frivolous.
See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). Accordingly, the
judgment of the district court is affirmed.
The district court’s dismissal of Pagonis’s § 1983 complaint as frivolous
and for failure to state a claim counts as a strike for purposes of § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). A previous § 1983
complaint filed by Pagonis was dismissed as frivolous and for failure to state a
claim in district court, and that dismissal was affirmed on appeal. See Pagonis
v. Texas Dep’t of Criminal Justice, 518 F. App’x 328, 329 (5th Cir. 2013).
Pagonis now has two strikes, and he is CAUTIONED that if he accumulates
three strikes, he will not be able to proceed IFP 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; MOTION TO AMEND BRIEF GRANTED; MOTIONS FOR
APPOINTMENT OF COUNSEL, TO SUPPLEMENT THE RECORD, AND TO
SUPPLEMENT BRIEF DENIED; SANCTION WARNING ISSUED.
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