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Vela v. Presley ( 2023 )


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  • Case: 22-40484         Document: 00516738378             Page: 1      Date Filed: 05/04/2023
United States Court of Appeals
for the Fifth Circuit                                       United States Court of Appeals
Fifth Circuit
____________                                     FILED
May 4, 2023
No. 22-40484
Summary Calendar                            Lyle W. Cayce
Clerk
____________
Eduardo Vela,
Plaintiff—Appellant,
versus
Doctor Presley, Doctor, Coastal Bend Detention Center;
United States Marshall Service; The GEO Group,
Incorporated,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:21-CV-193
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Plaintiff-Appellant Eduardo Vela, now federal prisoner # 37706-479,
appeals the dismissal of his lawsuit under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics,
    403 U.S. 388
    , 397 (1971), for failure to state
a claim pursuant to
    28 U.S.C. § 1915
    (e)(2)(B)(ii) and § 1915A. Vela has also
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40484      Document: 00516738378          Page: 2    Date Filed: 05/04/2023
No. 22-40484
filed a motion for appointment of counsel. For the following reasons, we
AFFIRM the district court’s judgment and DENY Vela’s motion for
appointment of counsel.
We review the district court’s dismissal of Vela’s lawsuit de novo.
Legate v. Livingston,
    822 F.3d 207
    , 209–10 (5th Cir. 2016). Dismissal is
appropriate when a complaint does not “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal,
    556 U.S. 662
    , 678 (2009).
By affording his brief liberal construction, we conclude that Vela
renews his claims that Dr. Presley, the GEO Group, Inc. (“GEO Group”),
and the United States Marshal Service (“USMS”) were deliberately
indifferent to his serious medical needs while he was a pretrial detainee in the
Coastal Bend Detention Center. He urges that Defendants-Appellees denied
or delayed care and mistreated him for his numbness in his feet, urinary
problems, and ear infections. He also complains that his problems continue
to worsen, that he was denied an appointment with a neurologist, and that he
has been denied hearing aids.
Vela has abandoned these claims by failing to brief any challenge to
the district court’s denial of his implied motion to amend his complaint. See
Yohey v. Collins,
    985 F.2d 222
    , 224–25 (5th Cir. 1993). In fact, he specifically
denies that he sought to amend his complaint. However, he now sets forth,
for the first time on appeal, more detailed factual allegations regarding Dr.
Presley’s alleged failure to treat him for the bone fragment that he claims
protruded through his gum during the pendency of these proceedings, urging
that he received inadequate treatment for the ongoing problem and resulting
pain.
To the extent that Vela raises new arguments and allegations not first
presented to the district court, we need not consider them. See Martinez v.
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No. 22-40484
Pompeo,
    977 F.3d 457
    , 460 (5th Cir. 2020); Leverette v. Louisville Ladder Co.,
    183 F.3d 339
    , 342 (5th Cir. 1999) (same). Even were that not so, Vela’s claim
is subject to dismissal for the reason explained below.
The district court correctly held that Dr. Presley and the GEO Group
are private actors not subject to liability under Bivens for conduct that
typically falls within the scope of traditional state tort law. See Minneci v.
Pollard,
    565 U.S. 118
    , 131 (2012); Correctional Services Corp. v. Malesko,
    534 U.S. 61
    , 66 (2001); Eltayib v. Cornell Companies, Inc.,
    533 F. App’x 414
    , 414–
15 (5th Cir. 2013). Vela has abandoned any claim against the remaining
defendant, the USMS, by failing to brief any argument challenging the
district court’s conclusion that USMS is similarly not subject to suit. See
Yohey,
    985 F.2d at 
    224–25. Even had he briefed this argument, it would be
unavailing because Bivens does not provide a cause of action against federal
agencies. See FDIC v. Meyer,
    510 U.S. 471
    , 484–86 (1994).
Moreover, Vela has shown no error on the part of the district court in
dismissing his complaint for failure to state a claim. He likewise fails to show
that the district court abused its discretion in denying his motions for the
appointment of counsel. See Baranowski v. Hart,
    486 F.3d 112
    , 126 (5th Cir.
2007); Ulmer v. Chancellor,
    691 F.2d 209
    , 212 (5th Cir. 1982).
We therefore AFFIRM the district court’s judgment. Our
affirmance of the district court’s dismissal of Vela’s complaint under
§ 1915(e)(2)(B) counts as one strike under
    28 U.S.C. § 1915
    (g). See Adepegba
v. Hammons,
    103 F.3d 383
    , 387 (5th Cir. 1996), abrogated in part on other
grounds by Coleman v. Tollefson,
    575 U.S. 532
    , 534–41 (2015). Vela is
WARNED that if he accumulates three strikes, 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.
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No. 22-40484
See § 1915(g). Additionally, Vela’s motion for appointment of counsel is
DENIED.
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