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

                                                FILED
                                                                  April 28, 2009
                                No. 08-40014
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

DAVID BIRDWELL

                                            Plaintiff-Appellant

v.

BRAD LIVINGSTON, Director, Texas Department of Criminal Justice, Criminal
Investigation Division; WILLIAM SEIGMAN, Director, Texas Board of Pardons
and Paroles; JACK SKEEN, JR, Unknown District Attorney, Smith County,
Texas; UNKNOWN PERSON, State Authorized Contractor, United States
Extraditions

                                            Defendants-Appellees


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 6:07-CV-399


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      David Birdwell appeals the district court’s dismissal as frivolous and for
failure to state a claim of his 42 U.S.C. § 1983 civil rights complaint. We review
the dismissal of a complaint under 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous for
abuse of discretion, Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005), and we


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-40014

review the dismissal of a complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure
to state a claim under the same de novo standard of review applicable to
dismissals made pursuant to F ED. R. C IV. P. 12(b)(6). Harris v. Hegmann, 198
F.3d 153, 156 (5th Cir. 1999); see also In re Katrina Canal Breaches Litigation,
495 F.3d 191, 205 (5th Cir. 2007) (de novo review of dismissal for failure to state
a claim using revised F ED. R. C IV. P. 12(b)(6) standard). Because the district
court referred to both sections of the statute when it dismissed Birdwell’s
complaint, review is de novo. See Geiger, 404 F.3d at 373.
      Birdwell asserts that the district court incorrectly concluded that his false
incarceration did not constitute a deprivation of his due process rights. Birdwell
argues that defendants William Seigman and Jack Skeen, Jr., knew or should
have known that he was being wrongly imprisoned pursuant to an erroneous
escape warrant, and demonstrated indifference to his circumstances by ignoring
his repeated protestations that his incarceration was unjustified. To the extent
that Birdwell raised similar claims against Brad Livingston in his complaint, he
has abandoned those claims by failing to raise them on appeal. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (even pro se litigants must brief
arguments in order to preserve them).
      This court has held that an illegal detention by way of false imprisonment
is a recognized cause of action under § 1983. Sanchez v. Swyden, 139 F.3d 464,
469 (5th Cir. 1998). A defendant alleging false imprisonment must establish
that an official’s actions went beyond mere negligence before an illegal detention
claim takes on constitutional dimensions. Id. The detention of an individual for
a limited duration on the basis of a facially valid search warrant and in spite of
the prisoner’s claims of innocence will not establish a due process violation.
Baker v. McCollam, 443 U.S. 137, 143-45 (1979); Sanchez, 139 F.3d at 468-69.
However, an official may be exposed to liability under § 1983 if he deliberately
ignores exonerative evidence or fails to act upon known exculpatory information.
Sanders v. English, 950 F.2d 1152, 1162 (5th Cir. 1992).

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      Birdwell has failed to show that the district court erred in holding that the
defendants did not violate his due process rights. Birdwell does not dispute that
his arrest was effectuated pursuant to a facially valid warrant, and he has not
shown that the absolute duration of his incarceration ipso facto establishes a due
process violation. See Baker, 443 U.S. at 144; Simmons v. McElveen, 846 F.2d
337, 338-39 (5th Cir. 1988). Moreover, Birdwell has not shown that Seigman
and Skeen deliberately ignored exonerative evidence rather than merely
exhibiting negligence in not apprehending earlier that Birdwell’s state
convictions and sentences had been vacated. See id. Birdwell has presented no
evidence that Seigman or Skeen personally were aware either that Birdwell’s
state sentences were vacated or that Birdwell had been wrongly imprisoned
pursuant to an erroneous escape warrant. Birdwell’s attempt to establish the
defendants’ liability through vicarious liability is unavailing. See Rios v. City of
Del Rio, Tex., 444 F.3d 417, 425 (5th Cir. 2006).
      Birdwell also asserts that the district court incorrectly concluded that he
did not have a claim for a violation of his procedural due process rights because
state tort remedies provided adequate post-deprivation remedies. However, the
district court correctly held that Birdwell is prevented by the Parratt/Hudson
doctrine 1 from pursuing a false imprisonment claim in federal court. Birdwell
neither alleges that the defendants’ actions were undertaken pursuant to
existing state procedures, nor does he identify a state policy that resulted in his
improper detention; Birdwell essentially argues that the defendants committed
a random and unauthorized violation of his due process rights. See Parratt, 451
U.S. at 543; Hudson, 468 U.S. at 533. This court has held that Texas law affords
adequate remedies for procedural due process violations resulting from false
imprisonment “both while it was underway and for post-deprivation



      1
       Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v.
Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S. 517 (1984).

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compensatory relief.” Martin v. Dallas County, 822 F.2d 553, 555 (5th Cir.
1987). Birdwell’s inability to recover under state remedies the full amount that
he might receive in a § 1983 action is not determinative of the adequacy of the
state remedies. See Hudson, 468 U.S. at 535.
      Birdwell further argues that the district court erroneously held that the
Eastern District of Texas was not the proper venue for a lawsuit against U.S.
Extraditions to seek redress for the purported injuries that Birdwell sustained
during his extradition from Colorado to Texas. Birdwell has not shown that
there is a basis for venue in the Eastern District pursuant to the applicable
venue statute.    See 28 U.S.C. § 1391(b).      There is no evidence that U.S.
Extraditions is a resident of, or may be found in, the Eastern District of Texas.
See § 1391(b)(1) & (3). Furthermore, the events or omissions giving rise to
Birdwell’s claims against U.S. Extraditions exclusively occurred outside the
Eastern District. See § 1391(b)(2).
      Finally, Birdwell contends that Colorado authorities incorrectly denied
him an extradition hearing prior to his transfer to Texas. However, Birdwell’s
allegations solely implicate the purported actions of prison officials in Colorado,
and Birdwell did not name any Colorado prison officials as defendants in his
complaint. Moreover, Birdwell has failed to show that the alleged actions of
Colorado authorities during his imprisonment in Colorado concern actors or
events that establish venue in the Eastern District of Texas. See § 1391(b).
      Thus, in light of the foregoing, the district court’s judgment is AFFIRMED.




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