                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 22, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 05-40730
                           Summary Calendar


DELTA L. EADY,

                                      Plaintiff-Appellant,

versus

UNITED STATES FEDERAL BUREAU OF PRISONS AND
ITS EMPLOYEES; ET. AL.,

                                      Defendants,

UNITED STATES OF AMERICA,

                                      Defendant-Appellee.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC No. 2:04-CV-368
                        --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Delta L. Eady, federal prisoner # 13057-074, appeals the

district court’s dismissal of his claims against the Government

under the Federal Tort Claims Act.    He asserts that the district

court failed to apply the proper standards in granting the

Government’s motion under Federal Rule of Civil Procedure

12(b)(6).   He states that the court failed to liberally construe


     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-40730
                                  -2-

his pro se complaint; improperly weighed the evidence instead of

assuming that the factual allegations in his complaint were true;

failed to draw all reasonable inferences in his favor; and abused

its discretion in granting the dismissal.      However, he merely

recites these standards without referencing the district court’s

opinion or explaining how it failed to apply them.       Because Eady

does not adequately brief these issues, he has abandoned them.

See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

     Eady also abandons his argument that the district court

should have conducted a hearing before dismissing his case by

failing to cite authority for the proposition.        See Yohey, 985

F.2d at 224-25.   Similarly, although he recites various duties

allegedly owed to prisoners by the Bureau of Prisons, he fails to

cite to the record or explain how these duties were breached in

his case.   Accordingly, these arguments also have been abandoned.

See id. at 224-25.

     Next Eady asserts that the district court erred by not

allowing him to amend his complaint.     However, the Government

never filed an answer, so the court’s leave was not required to

amend the complaint.     See FED. R. CIV. P. 15(a).   To the extent he

is arguing that the district court should have identified the

defects in his complaint and ordered him to amend it accordingly,

his argument is also meritless.     Section 1915(e) of Title 28

required the court to dismiss Eady’s complaint upon determining

that it was frivolous.     See § 1915(e)(2)(B)(i).
                            No. 05-40730
                                 -3-

     Finally, Eady asserts that the Government’s motion to

dismiss was moot because the Government did not object to the

initial recommendation by the magistrate judge that the case be

allowed to proceed against it.   He relies upon the rule that a

party’s failure to object to a magistrate judge’s report and

recommendations within 10 days limits that party from appealing

the proposed conclusions except upon grounds of plain error.      See

Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th

Cir. 1996)(en banc).   The Government did not appeal in this case;

therefore, the rule cited by Eady does not apply.

     Because Eady’s appeal fails to raise any issues of arguable

merit, we dismiss it as frivolous.    See Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2.   This dismissal

will count as a strike against Eady under 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

The district court’s dismissal of his complaint as frivolous

counts as another strike.   See id.   Eady is cautioned that if he

accumulates three strikes, he will not be allowed to proceed in

forma pauperis in any civil action or appeal filed while he is

incarcerated or detained in any facility unless he is in

“imminent danger of serious physical injury.”    See § 1915(g).

     Eady’s motion for leave to participate in oral argument is

DENIED.   APPEAL DISMISSED; SANCTION WARNING ISSUED.
