Opinion

Brown v. City of Houston Plce

Court
Court of Appeals for the Fifth Circuit
Filed
Apr 9, 2021
Status
Unpublished
Nature of suit
Prisoner w/ out Counsel
Cited by
0 cases
Authority
More cited than 15.2%

The opinion

Case: 19-20699 Document: 00515816150 Page: 1 Date Filed: 04/09/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

April 9, 2021

No. 19-20699

Summary Calendar Lyle W. Cayce

Clerk

Brisby Ray Brown, II,

Plaintiff—Appellant,

versus

City of Houston Police; Harris County Jail,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-3919

Before King, Smith, and Wilson, Circuit Judges.

Per Curiam:*

Brisby Ray Brown, II, a former pretrial detainee in Harris County,

Texas (SPN # 01528797), appeals the district court’s dismissal of his 42

U.S.C. § 1983 complaint, which he filed in forma pauperis (IFP). In his

complaint, Brown alleged that the Houston Police Department (HPD)

*

Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.

Case: 19-20699 Document: 00515816150 Page: 2 Date Filed: 04/09/2021

No. 19-20699

unlawfully arrested him and that the Harris County Jail held him in custody

without probable cause and failed to bring him before a magistrate prior to

being formally charged. The district court dismissed Brown’s claims for

failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1).

We review de novo the dismissal of a prisoner’s IFP civil rights

complaint for failure to state a claim. Legate v. Livingston, 822 F.3d 207, 209–

10 (5th Cir. 2016). As a threshold matter, Brown does not brief, and has thus

abandoned, any challenge to the dismissal of his claims against the Harris

County Jail or Harris County. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th

Cir. 1993). And we do not consider his claims of cruel and unusual

punishment and malicious prosecution, which are raised for the first time on

appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999).

To state a claim for relief under § 1983, a plaintiff must allege that a

person “deprived him of a federal right” secured by the Constitution or laws

of the United States and that “the person who has deprived him of that right

acted under color of state or territorial law.” Arnold v. Williams, 979 F.3d

262, 266 (5th Cir. 2020) (citation omitted); see also Pratt v. Harris County,

822 F.3d 174, 180 (5th Cir. 2016). We perceive no error in the district court’s

conclusion that Brown failed to state a claim upon which relief could be

granted against HPD, the City of Houston, or the individual arresting

officers. See Trammell v. Fruge, 868 F.3d 332, 344 (5th Cir. 2017); Deville

v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009); Darby v. Pasadena Police

Dep’t, 939 F.2d 311, 313–14 (5th Cir. 1991).

Accordingly, the judgment of the district court is AFFIRMED. The

district court’s dismissal of Brown’s civil rights action for failure to state a

claim counts as a strike under 28 U.S.C. § 1915(g). See Coleman v. Lincoln

Par. Det. Ctr., 858 F.3d 307, 310 (5th Cir. 2017) (per curiam); Adepegba v.

2

Case: 19-20699 Document: 00515816150 Page: 3 Date Filed: 04/09/2021

No. 19-20699

Hammons, 103 F.3d 383, 387 (5th Cir. 1996), abrogated in part on other grounds

by Coleman v. Tollefson, 135 S. Ct. 1759, 1762–63 (2015). Brown is

WARNED that, if he accumulates three strikes, he will be barred from

proceeding 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).

3

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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