     Case: 15-30930      Document: 00513864478         Page: 1    Date Filed: 02/06/2017




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

                                    No. 15-30930                                FILED
                                  Summary Calendar                        February 6, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
CARL WAYNE STEWART,

                                                 Plaintiff-Appellant

v.

STATE OF LOUISIANA; CITY OF NATCHITOCHES,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:15-CV-1934


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Carl Wayne Stewart appeals the district court’s dismissal of his civil
rights complaint filed in forma pauperis (IFP). See 28 U.S.C. § 1915(a). He
argues that the district court erred as follows: by referring his case to the
magistrate judge, without obtaining his consent, as required by Federal Rule
of Civil Procedure 73; by adopting the magistrate judge’s allegedly inadequate
analysis and conclusions, without considering the arguments Stewart


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30930

advanced, which, Stewart says, departed from the usual and accepted course
of judicial proceedings and constituted an abuse of discretion; and by
dismissing his complaint sua sponte before the defendants made an
appearance and based on reasons not raised by the parties.
      Consent is not required when, as here, the district court refers a case to
the magistrate judge to hear pretrial matters dispositive of claims and to enter
a recommended disposition. FED. R. CIV. P. 72(b)(1). Stewart was afforded
the opportunity to object to the magistrate judge’s report and challenge the
inadequacy of the analysis and conclusions. See FED. R. CIV. P. 72(b)(2). In
compliance with Rule 72, the district court considered de novo Stewart’s
objections and overruled them. See FED. R. CIV. P. 72(b)(3). The district court
is required to dismiss a complaint filed IFP at any time if determines that the
case is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune from
such relief. § 1915(e)(2)(B)(i)-(iii). This includes the time before defendants
are served, make an appearance, or file an answer. See Green v. McKaskle,
788 F.2d 1116, 1119 (5th Cir. 1986). As shown by the foregoing, the district
court did not commit any procedural error in the treatment of Stewart’s
complaint.
      Stewart does not challenge the magistrate judge’s ruling, adopted by the
district court, that Stewart’s claims against the State and the City were not
cognizable under 42 U.S.C. § 1983 and thus frivolous. Accordingly, he has
abandoned any arguments challenging the dismissal of his claims as frivolous.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987); see also Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)
(stating that pro se plaintiffs, like other litigants, must brief arguments to
preserve them).      Moreover, Stewart had an opportunity to raise such a



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                               No. 15-30930

challenge in his objections to the MJ’s report and recommendation, but he did
not do so.
      The judgment of the district court is AFFIRMED. Stewart’s motion for
an appellate conference or, in the alternative, an evidentiary hearing to aid
appellate review is DENIED.




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