United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 31, 2005
Charles R. Fulbruge III
Clerk
No. 04-10915
Summary Calendar
ERIC GANT,
Plaintiff-Appellant,
versus
LOCKHEED MARTIN CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-2782-L
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Eric Gant, pro se and in forma pauperis, appeals from the 28
U.S.C. § 1915(e)(2)(B)(i) dismissal of his civil complaint as
frivolous. Gant challenges the district court’s dismissal of his
42 U.S.C. § 1983 claims and also challenges the district court’s
dismissal of his 18 U.S.C. § 2512 claim. Gant’s motion to file a
reply brief out-of-time is GRANTED.
Gant has abandoned the issue of the district court’s
dismissal of his state-law claims by failing to brief the issue
on appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner,
*
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this opinion should not be published and is not precedent except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. 04-10915
-2-
813 F.2d 744, 748 (5th Cir. 1987); see Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993).
We review a dismissal of a complaint as frivolous under 28
U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. See Ruiz
v. United States, 160 F.3d 273, 275 (5th Cir. 1998). A district
court may dismiss an IFP complaint as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i) if it lacks an arguable basis in law or fact.
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
The district court did not abuse its discretion in
dismissing Gant’s 42 U.S.C. § 1983 claims against Lockheed Martin
Corporation (“Lockheed”) based on Gant’s allegations failing to
satisfy the requirement that Lockheed was a state actor acting
under color of state law. See generally Ballard v. Wall, 413
F.3d 510, 518 (5th Cir. 2005). Nor did the district court abuse
its discretion in dismissing as frivolous Gant’s 18 U.S.C. § 2512
claim. Even if a private right of action exists under 18 U.S.C.
§ 2512, an issue we do not herein decide, Gant’s complaint did
not allege that Lockheed knew or had reason to know that the
purportedly defective transponders were designed in such a way as
to render them “primarily useful for the purpose of the
surreptitious interception of wire, oral, or electronic
communications.” See 18 U.S.C. § 2512.
Gant was previously warned that if he continued to file
frivolous appeals, this court would issue sanctions. Gant v.
Texas, No. 04-10757, slip op. at 2 (5th Cir. Feb. 23, 2005)
No. 04-10915
-3-
(unpublished). Because this court has previously warned of
sanctions and Gant’s appeal is frivolous, we determine that
sanctions are warranted. See Coghlan v. Starkey, 852 F.2d 806,
808 (5th Cir. 1988)(courts of appeals have the ability to impose
sanctions sua sponte).
This appeal is without arguable merit and is DISMISSED as
frivolous. 5th CIR. R. 42.2. Gant is hereby ORDERED to pay
$100.00 to the clerk of this court. The clerk of this court and
the clerks of all courts subject to the jurisdiction of this
court are directed to return to Gant unfiled any submissions he
should make until the sanction is paid in full.
MOTION TO FILE REPLY BRIEF OUT-OF-TIME GRANTED; APPEAL
DISMISSED; SANCTIONS IMPOSED.