Valentin Ayala-Gutierrez v. John Doe #1

Filing

UNPUBLISHED OPINION FILED. [16-20164 Affirmed ] Judge: EHJ , Judge: JLW , Judge: JWE Mandate pull date is 09/18/2017; granting motion to file brief out of time filed by Appellant Mr. Valentin Ayala-Gutierrez [8317762-2]; denying motion to appoint counsel filed by Appellant Mr. Valentin Ayala-Gutierrez [8189152-2] [16-20164]

Case: 16-20164

Document: 00514133161

Page: 1

Date Filed: 08/28/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-20164
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
August 28, 2017
Lyle W. Cayce
Clerk

VALENTIN AYALA-GUTIERREZ,
Plaintiff-Appellant
v.

#1 JOHN DOE; #2 JOHN DOE; CCRI GUARD JOHN DOE #3; OFFICER
JANE DOE; DIANA E. JACKSON, Nurse Practitioner; CHRIS STRICKLAND,
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-387
Before JONES, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Valentin Ayala-Gutierrez, Texas prisoner # 1730618, appeals the
dismissal without prejudice of his 42 U.S.C. § 1983 complaint for failure to
state a claim. He also moves for the appointment of counsel and for leave to
file an out-of-time reply brief. Ayala-Gutierrez alleged that he suffered Eighth
Amendment violations while a federal pretrial detainee in Joe Corley

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 16-20164
Detention Facility and named as defendants the GEO Group, Inc., (GEO) and
several of its employees. The district court held that he stated neither a § 1983
nor a Bivens 1 claim.
We review the district court’s dismissal de novo.

See Legate

v. Livingston, 822 F.3d 207, 209-10 (5th Cir.), cert. denied sub nom. Legate
v. Collier, 137 S. Ct. 489 (2016). To state a claim for relief under § 1983, a
plaintiff is required to allege that he was deprived of a constitutional right by
those acting under the color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 155 (1978). A Bivens action is analogous to an action under § 1983, except
that § 1983 applies to constitutional violations by state, rather than federal,
actors. Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005).
Ayala-Gutierrez argues that he has stated a claim under § 1983 because
GEO is a state actor that derives its authority to operate Joe Corley Detention
Facility from the state of Texas. He additionally argues that he has stated a
claim under Bivens because GEO is a federal employee insofar as it acts under
the color of federal law in operating Joe Corley Detention Facility. This court
has rejected these arguments in Eltayib v. Cornell Companies, Inc.,
533 F. App’x 414, 414-15 (5th Cir. 2013). Eltayib held that GEO and their
employees are not subject to suit as state actors under § 1983 because they
manage a federal prison, and § 1983 applies to constitutional violations by
state--not federal--officials. 533 F. App’x at 414. It additionally held that GEO
and its employees cannot be liable as private actors under Bivens. Id. (citing
Minneci v. Pollard, 565 U.S. 118, 131 (2012), and Correctional Services Corp.
v. Malesko, 534 U.S. 61, 63-64 (2001)). Ayala-Gutierrez therefore has shown
no error on the part of the district court in dismissing his complaint for failure
to state a claim.
1

Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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Ayala-Gutierrez additionally argues that the district court abused its
discretion in denying his motion to file an amended complaint, which motion
was filed after entry of the order dismissing his suit. His motion was denied
as moot, with the court noting that the lawsuit was closed. Ayala-Gutierrez’s
arguments address the viability of the claims raised in his proposed complaint;
he does not assign error to or address the district court’s ruling that the motion
was moot because judgment had been entered and the lawsuit was closed. He
has therefore waived review of that issue. See Yohey v. Collins, 985 F.2d 222,
229 (5th Cir. 1993); Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). Ayala-Gutierrez also asks this court to review the
district court’s dismissal of all of his motions, listing 18 docket entries that he
would like this court to review. However, he sets forth no legal argument and
does not identify any alleged error on the part of the district court in disposing
of any of these motions. His failure to adequately brief this issue renders it
waived. See Yohey, 985 F.2d at 229.
Ayala-Gutierrez’s motion for the appointment of counsel is denied. See
Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). His motion for leave
to file an out-of-time reply brief is granted.
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
MOTION FOR LEAVE TO FILE OUT-OF-TIME REPLY BRIEF GRANTED.

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