Fernando Barraza v. King, UTMB Employee , 713 F. App'x 365 ( 2018 )

Case: 17-20064 Document: 00514365187 Page: 1 Date Filed: 02/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-20064
Fifth Circuit
FILED
Summary Calendar February 27, 2018
Lyle W. Cayce
FERNANDO BARRAZA, Clerk
Plaintiff-Appellant
v.
KING, UNIVERSITY OF TEXAS MEDICAL BRANCH EMPLOYEE;
UNIVERSITY OF TEXAS MEDICAL BRANCH,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-2567
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Fernando Barraza, Texas prisoner # 825835, appeals the district court’s
sua sponte dismissal of his pro se 42 U.S.C. § 1983 lawsuit with prejudice and
its denial of his motion to alter or amend the judgment under Federal Rule of
Civil Procedure 59(e). Barraza has failed to raise in his initial appellate brief,
thereby abandoning, a challenge to the district court’s dismissal on
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20064 Document: 00514365187 Page: 2 Date Filed: 02/27/2018
No. 17-20064
jurisdictional grounds of his claims against the University of Texas Medical
Branch. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
We review de novo the district court’s dismissal of the claims against
Latabita King for failure to state a claim. Rogers v. Boatright, 709 F.3d 403,
406–07 (5th Cir. 2013). When, as here, a prisoner proceeds in forma pauperis
(“IFP”), the district court has the power on its own motion to dismiss the case
for failure to state a claim. Brown v. Taylor, 829 F.3d 365, 370 (5th Cir. 2016)
(citing 28 U.S.C. § 1915(e)(2)(b)(ii)). However, if the dismissal is with
prejudice, “basic fairness” generally requires that the district court must first
“giv[e] the plaintiff notice of the perceived inadequacy of the complaint and an
opportunity for the plaintiff to respond.” Id. Courts typically give such notice
through a hearing or a questionnaire. Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.
1994). Here, the district court did not do so.
After his complaint was dismissed for failure to state a claim, Barraza
timely filed an unsuccessful Rule 59(e) motion and sought to supplement his
original complaint’s allegations by filing an amended complaint, the viability
of which he has continued to urge in this appeal. Although the district court
denied Rule 59(e) relief as futile based on the reported inability of the Texas
Attorney General’s Office to contact King, we note that King’s last known
personal address was filed under seal in the district court, which is obligated
to direct a United States marshal or deputy marshal or a specially appointed
person to effect service in this IFP case. See FED. R. CIV. P. 4(c)(3).
In light of the foregoing, we AFFIRM the dismissal of Barraza’s claims
against the University of Texas Medical Branch; VACATE the district court’s
dismissal of Barraza’s claims against King, without expressing any opinion on
their merits; and REMAND for further proceedings.
2