Brown v. City of Houston Plce ( 2021 )

Case: 19-20699 Document: 00515816150 Page: 1 Date Filed: 04/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 9, 2021
No. 19-20699
Summary Calendar Lyle W. Cayce
Clerk
Brisby Ray Brown, II,
Plaintiff—Appellant,
versus
City of Houston Police; Harris County Jail,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-3919
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Brisby Ray Brown, II, a former pretrial detainee in Harris County,
Texas (SPN # 01528797), appeals the district court’s dismissal of his 42
U.S.C. § 1983 complaint, which he filed in forma pauperis (IFP). In his
complaint, Brown alleged that the Houston Police Department (HPD)
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-20699 Document: 00515816150 Page: 2 Date Filed: 04/09/2021
No. 19-20699
unlawfully arrested him and that the Harris County Jail held him in custody
without probable cause and failed to bring him before a magistrate prior to
being formally charged. The district court dismissed Brown’s claims for
failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1).
We review de novo the dismissal of a prisoner’s IFP civil rights
complaint for failure to state a claim. Legate v. Livingston, 822 F.3d 207, 209–
10 (5th Cir. 2016). As a threshold matter, Brown does not brief, and has thus
abandoned, any challenge to the dismissal of his claims against the Harris
County Jail or Harris County. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th
Cir. 1993). And we do not consider his claims of cruel and unusual
punishment and malicious prosecution, which are raised for the first time on
appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999).
To state a claim for relief under § 1983, a plaintiff must allege that a
person “deprived him of a federal right” secured by the Constitution or laws
of the United States and that “the person who has deprived him of that right
acted under color of state or territorial law.” Arnold v. Williams, 979 F.3d
262, 266 (5th Cir. 2020) (citation omitted); see also Pratt v. Harris County,
822 F.3d 174, 180 (5th Cir. 2016). We perceive no error in the district court’s
conclusion that Brown failed to state a claim upon which relief could be
granted against HPD, the City of Houston, or the individual arresting
officers. See Trammell v. Fruge, 868 F.3d 332, 344 (5th Cir. 2017); Deville
v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009); Darby v. Pasadena Police
Dep’t, 939 F.2d 311, 313–14 (5th Cir. 1991).
Accordingly, the judgment of the district court is AFFIRMED. The
district court’s dismissal of Brown’s civil rights action for failure to state a
claim counts as a strike under 28 U.S.C. § 1915(g). See Coleman v. Lincoln
Par. Det. Ctr., 858 F.3d 307, 310 (5th Cir. 2017) (per curiam); Adepegba v.
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No. 19-20699
Hammons, 103 F.3d 383, 387 (5th Cir. 1996), abrogated in part on other grounds
by Coleman v. Tollefson, 135 S. Ct. 1759, 1762–63 (2015). Brown is
WARNED that, if he accumulates three strikes, he will be barred from
proceeding 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).
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