     Case: 17-20119          Document: 00514247861      Page: 1    Date Filed: 11/22/2017




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

                                       No. 17-20119                               FILED
                                     Summary Calendar                     November 22, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
COLLINS O. NYABWA,

                                                   Plaintiff-Appellant

v.

CORRECTIONS CORPORATION OF AMERICA,

                                                   Defendant-Appellee


                       Appeals from the United States District Court
                            for the Southern District of Texas
                                 USDC No. 4:16-CV-1644


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
          Collins O. Nyabwa has moved for leave to proceed in forma pauperis
(IFP). He seeks to appeal the district court’s dismissal of his Bivens 1 complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. In that complaint, Nyabwa claimed that the
Corrections Corporation of America (CCA) violated his constitutional rights by


         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.

          1   Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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                                    No. 17-20119

falsely imprisoning him at a federal immigration detention center pending
deportation proceedings that were based on his three Texas convictions for
improper photography. After his deportation proceedings were terminated and
he was released from detention, the Texas Court of Criminal Appeals held in
an   unrelated      case     that   the   improper    photography      statute   was
unconstitutional. See Ex parte Thompson, 442 S.W.3d 325, 351 (Tex. Crim.
App. 2014). In this case, the district court determined that (1) Nyabwa failed
to state a claim against CCA because Bivens did not extend to a damages claim
against a private entity; and (2) Nyabwa failed to state a false imprisonment
claim under Texas state law. It also denied his motions for a declaration of
actual innocence, summary judgment, leave to amend his complaint, recusal,
and a hearing regarding his recusal motion. The district court denied Nyabwa
leave to proceed IFP because it certified that his appeal was not taken in good
faith.
         By moving for leave to proceed IFP on appeal, Nyabwa challenges the
district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into his good
faith “is limited to whether the appeal involves legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Nyabwa’s first
motion for leave to file a supplemental appeal brief is GRANTED. His second
motion for leave to file a supplemental appeal brief is DENIED.
         We review de novo a dismissal for failure to state a claim under Rule
12(b)(6). See Legate v. Livingston, 822 F.3d 207, 209-10 (5th Cir.), cert. denied
sub nom. Legate v. Collier, 137 S. Ct. 289 (2016). A complaint fails to state a
claim upon which relief may be granted when it does not contain “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on



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                                  No. 17-20119

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
and citation omitted).
      We review the district court’s denial of Nyabwa’s motion to amend his
complaint for abuse of discretion. See Foman v. Davis, 371 U.S. 178, 182
(1962). Because Nyabwa had sufficient opportunity to plead his best case and
the information Nyabwa sought to include in his complaint would not have
prevented the complaint’s dismissal, the district court did not abuse its
discretion by denying his motion to amend based on futility.         See Avatar
Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 321 (5th Cir. 1991).
      The district court properly determined that Nyabwa’s complaint failed
to state a claim upon which relief can be granted. Pursuant to Correctional
Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001), a federal prisoner cannot use
Bivens “to allow recovery against a private corporation operating a halfway
house under contract with the Bureau of Prisons.” Nyabwa fails to provide any
relevant explanation supporting his argument that Malesko is not applicable
here because he claims to be actually innocent. Moreover, he has not shown
how his citation to the actual-innocence prong of the test set forth in Reyes-
Requena v. United States, 243 F.3d 893, 900-04 (5th Cir. 2001), is relevant in
this context. Nyabwa’s reliance on 28 U.S.C. §§ 1495 and 2513 is misplaced
because those statutes “come into play only after a defendant has succeeded in
overturning his federal conviction and is seeking damages for wrongful
conviction,” and, as such, have no relevance here. Freeman v. Johnson, 79 F.
App’x 3, 3 (5th Cir. 2003). One recent opinion on which relies does not directly
support his argument because that case did not involve a claim of false
imprisonment. See Nelson v. Colorado, 137 S. Ct. 1249 (2017).
      The district court’s determination, under supplemental jurisdiction, that
Nyabwa failed to state a claim of false imprisonment under Texas state law is



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supported by relevant law. See Wal-Mart Stores, Inc v. Resendez, 962 S.W.2d
539, 540 (Tex. 1998); Pete v. Metcalfe, 8 F.3d 214, 218-19 (5th Cir. 1993); James
v. Brown, 637 S.W.2d 914, 918 (Tex. 1982). Because Nyabwa failed to state a
claim and was not entitled to judgment as a matter of law, the district court
properly denied his motion for summary judgment. See FED. R. CIV. P. 56(a).
Due to the lack of an actual controversy, the district court also properly denied
Nyabwa’s request for declaratory relief. See Earnest v. Lowentritt, 690 F.2d
1198, 1203 (5th Cir. 1982).      Because Nyabwa’s conclusory arguments for
recusal were based on the district court judge’s actions in the course of judicial
proceedings and failed to show that the judge had an actual personal bias or
prejudice against him, the district court did not abuse its discretion by denying
his recusal motions or his motion for hearing as to recusal. See Liteky v. United
States, 510 U.S. 540, 555 (1994).
      Accordingly, Nyabwa has failed to show an error in the district court’s
certification decision and has not established that he will raise a nonfrivolous
issue on appeal.     See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220.
Nyabwa’s motion for leave to proceed IFP is DENIED, and his appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      Nyabwa is CAUTIONED that future frivolous, repetitive, or otherwise
abusive filings will result in the imposition of sanctions, including dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court
or any court subject to this court’s jurisdiction. He should review any pending
appeals and actions and move to dismiss any that are frivolous, repetitive, or
otherwise abusive.




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