United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 22, 2006
Charles R. Fulbruge III
Clerk
No. 05-40730
Summary Calendar
DELTA L. EADY,
Plaintiff-Appellant,
versus
UNITED STATES FEDERAL BUREAU OF PRISONS AND
ITS EMPLOYEES; ET. AL.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CV-368
--------------------
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Delta L. Eady, federal prisoner # 13057-074, appeals the
district court’s dismissal of his claims against the Government
under the Federal Tort Claims Act. He asserts that the district
court failed to apply the proper standards in granting the
Government’s motion under Federal Rule of Civil Procedure
12(b)(6). He states that the court failed to liberally construe
*
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this opinion should not be published and is not precedent except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. 05-40730
-2-
his pro se complaint; improperly weighed the evidence instead of
assuming that the factual allegations in his complaint were true;
failed to draw all reasonable inferences in his favor; and abused
its discretion in granting the dismissal. However, he merely
recites these standards without referencing the district court’s
opinion or explaining how it failed to apply them. Because Eady
does not adequately brief these issues, he has abandoned them.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Eady also abandons his argument that the district court
should have conducted a hearing before dismissing his case by
failing to cite authority for the proposition. See Yohey, 985
F.2d at 224-25. Similarly, although he recites various duties
allegedly owed to prisoners by the Bureau of Prisons, he fails to
cite to the record or explain how these duties were breached in
his case. Accordingly, these arguments also have been abandoned.
See id. at 224-25.
Next Eady asserts that the district court erred by not
allowing him to amend his complaint. However, the Government
never filed an answer, so the court’s leave was not required to
amend the complaint. See FED. R. CIV. P. 15(a). To the extent he
is arguing that the district court should have identified the
defects in his complaint and ordered him to amend it accordingly,
his argument is also meritless. Section 1915(e) of Title 28
required the court to dismiss Eady’s complaint upon determining
that it was frivolous. See § 1915(e)(2)(B)(i).
No. 05-40730
-3-
Finally, Eady asserts that the Government’s motion to
dismiss was moot because the Government did not object to the
initial recommendation by the magistrate judge that the case be
allowed to proceed against it. He relies upon the rule that a
party’s failure to object to a magistrate judge’s report and
recommendations within 10 days limits that party from appealing
the proposed conclusions except upon grounds of plain error. See
Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th
Cir. 1996)(en banc). The Government did not appeal in this case;
therefore, the rule cited by Eady does not apply.
Because Eady’s appeal fails to raise any issues of arguable
merit, we dismiss it as frivolous. See Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2. This dismissal
will count as a strike against Eady under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
The district court’s dismissal of his complaint as frivolous
counts as another strike. See id. Eady is cautioned that if he
accumulates three strikes, he will not be allowed to proceed in
forma pauperis in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is in
“imminent danger of serious physical injury.” See § 1915(g).
Eady’s motion for leave to participate in oral argument is
DENIED. APPEAL DISMISSED; SANCTION WARNING ISSUED.