Joseph Oguntodu v. Tony Pate, et al

Filing

UNPUBLISHED OPINION FILED. [13-11096 Dismissed as Frivolous] Judge: HRD , Judge: PRO , Judge: JEG Mandate pull date is 07/07/2014 [13-11096]

Case: 13-11096

Document: 00512663431

Page: 1

Date Filed: 06/13/2014

IN THE UNITED STATES COURT OF APPEALS`
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-11096
Summary Calendar

FILED
June 13, 2014
Lyle W. Cayce
Clerk

JOSEPH OYE OGUNTODU, also known as Ayoola Oguntodu,
Plaintiff-Appellant
v.
TONY PATE, Law Librarian; SAMANTHA CARROLL, Correction Officer III;
PAUL WAKEFIELD, Sergeant; TOMMIE KING, Correction Officer V;
MUNOZ, Correction Officer V,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:13-CV-81
Before DeMOSS, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Joseph Oye Oguntodu, Texas prisoner # 1728590, appeals the dismissal
of his pro se, in forma pauperis (IFP), 42 U.S.C. § 1983 suit alleging that the
defendants violated his constitutional rights by misconstruing his request to
make a will as a suicidal thought, placing him in administrative segregation,
leaving him there cold and naked without a blanket for 10 hours, transferring
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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him to a psychiatric unit against his will, and then placing him in a maximum
security unit instead of returning him to the minimum security unit in which
he had been housed previously.

The district court dismissed Oguntodu’s

complaint against certain defendants as frivolous, and it dismissed his
complaint against the remaining defendants for failure to state a claim upon
which relief could be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C.
§ 1997e(c). Oguntodu unsuccessfully sought reconsideration of his claims in a
motion filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, and
he is proceeding IFP on appeal.
We review the dismissal of Oguntodu’s complaint de novo. See Velasquez
v. Woods, 329 F.3d 420, 421 (5th Cir. 2003). A claim is frivolous if it does not
have an arguable basis in fact or law. Gonzales v. Wyatt, 157 F.3d 1016, 1019
(5th Cir. 1998). A claim may be dismissed for failure to state a claim upon
which relief may be granted if, assuming all well pleaded facts are true, the
plaintiff has not pleaded “enough facts to state a claim to relief that is plausible
on its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007) (internal quotation marks and citation omitted).
In his appellate brief, Oguntodu reiterates the facts he alleged in the
district court. He also asserts that the staff at his new maximum security
housing unit has been violating his constitutional rights.

He does not,

however, address the reasons given by the district court for dismissing the
claims he raised in the instant complaint. Accordingly, he has abandoned any
challenge to the judgment of the district court. See Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Oguntodu’s appeal is without arguable merit and is dismissed as
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2. The dismissal of this appeal as frivolous and the district court’s

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dismissal of Oguntodu’s complaint as frivolous and for failure to state a claim
each count as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

Oguntodu has already

accumulated two other strikes. See Oguntodu v. Gary, No. 13-11099 (5th Cir.
May 9, 2014). Accordingly, Oguntodu may no longer proceed 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).

Oguntodu is further cautioned that any future frivolous, repetitive, or
otherwise abusive filings in the district court or in this court will subject him
to additional and progressively more severe sanctions, as will his failure to
withdraw any pending matters that are frivolous, repetitive, or otherwise
abusive.
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR
IMPOSED; SANCTION WARNING ISSUED.

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