Reginald Guillory v. Paul Day, et al

Filing

UNPUBLISHED OPINION FILED. [15-20742 Affirmed] Judge: TMR, Judge: PRO, Judge: JWE. Mandate pull date is 05/15/2017 [15-20742]

Case: 15-20742

Document: 00513964850

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Date Filed: 04/24/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20742
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 24, 2017
Lyle W. Cayce
Clerk

REGINALD WAYNE GUILLORY,
Plaintiff–Appellant,
v.

PAUL DAY, StaffCo; STAFFING COMPANIES, INCORPORATED; PENSKE
TRUCK LEASING COMPANY, LIMITED PARTNERSHIP,
Defendants–Appellees.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-3475
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Reginald Wayne Guillory, a pre-trial detainee in the custody of the
Harris County Sheriff’s Office, appeals the dismissal of his 42 U.S.C. § 1983
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
Reviewing the district court’s dismissal de novo, Black v. Warren, 134 F.3d 732,
734 (5th Cir. 1998) (per curiam), we affirm.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Date Filed: 04/24/2017

No. 15-20742
To state a claim, “a complaint must 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) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausible if the plaintiff pleads
facts that allow a court “to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. To state a claim under § 1983, “a
plaintiff must (1) allege a violation of a right secured by the Constitution or
laws of the United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law.” James v. Tex. Collin
Cty., 535 F.3d 365, 373 (5th Cir. 2008) (quoting Moore v. Willis Indep. Sch.
Dist., 233 F.3d 871, 874 (5th Cir. 2000)). The district court held that Guillory’s
complaint did not raise a viable § 1983 claim because he did not present facts
showing that the appellees were state actors acting under color of law or that
they deprived him of a federal right.
None of Guillory’s arguments address the district court’s holding in this
regard. Without raising such allegations, the district court could not “draw the
reasonable inference that the defendant[s] [were] liable [under § 1983] for the
misconduct alleged.” Iqbal, 556 U.S. at 678; see James, 535 F.3d at 373.
Guillory’s failure to assign error to and brief the district court’s holding renders
the issue waived, and he therefore has shown no error on the part of the district
court in dismissing his suit for failure to state a claim. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). He also has not shown that the district
court abused its discretion in denying his postjudgment motion, construed as
one filed pursuant to Federal Rule of Civil Procedure 59(e). See Pioneer Nat.
Res. USA, Inc. v. Paper, Allied Indus., Chem. & Energy Workers Int’l Union
Local 4–487, 328 F.3d 818, 820 (5th Cir. 2003).

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No. 15-20742
Guillory is informed that our affirmance of the district court’s dismissal
counts as one strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (holding dismissals as frivolous
in the district courts and the court of appeals count as strikes for § 1915(g));
see also Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). Guillory is
cautioned that if he accumulates three strikes, he will no longer be allowed to
proceed in forma pauperis in any civil action or appeal filed while he is detained
or incarcerated in any facility unless he is in imminent danger of serious
physical injury. See § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.

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