     Case: 17-20466      Document: 00514550001         Page: 1    Date Filed: 07/11/2018




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

                                                                                FILED
                                    No. 17-20466                            July 11, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
COLLINS O. NYABWA,

                                                 Plaintiff-Appellant

v.

UNITED STATES OF AMERICA,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:16-CV-783


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Collins O. Nyabwa appeals from the district court’s dismissal with
prejudice of his Federal Tort Claims Act (FTCA) complaint, in which he alleged
that Immigration and Customs Enforcement (ICE) officials wrongfully
investigated and detained him based on his three prior Texas convictions for
improper photography, which were subsequently vacated. We review de novo
the district court’s dismissal pursuant to Federal Rule of Civil Procedure


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20466

12(b)(1). United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir.
2012). As the party asserting jurisdiction, Nyabwa had the burden of proof for
purposes of the Rule 12(b)(1) motion. See Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001).
      The FTCA is a limited waiver of the Government’s sovereign immunity
and permits suits against it for certain tort claims “in the same manner and to
the same extent as a private individual under like circumstances.” 28 U.S.C.
§ 2674. However, there are certain exceptions set forth in 28 U.S.C. § 2680
that block the FTCA’s waiver of the Government’s sovereign immunity. See
Tsolmon v. United States, 841 F.3d 378, 382 (5th Cir. 2016). Because waiver
of sovereign immunity is strictly construed, any uncertainty is decided in favor
of the Government. See id.
      To the extent that Nyabwa alleged that ICE officials committed a tort in
violation of his federal constitutional rights, the FTCA does not provide a cause
of action for such a claim. See F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994).
As held by the district court, it lacked subject matter jurisdiction over the
remainder of Nyabwa’s claims pursuant to the due care and discretionary
function exceptions, set forth in § 2680(a). See Tsolmon, 841 F.3d at 382-83;
Lively v. United States, 870 F.2d 296, 297 (5th Cir. 1989). Moreover, the
district court did not abuse its discretion by denying Nyabwa’s discovery
requests, especially in light of the greater burden applicable to a party
attempting to prevent application of an immunity bar. See Davila v. United
States, 713 F.3d 248, 264 (5th Cir. 2013); Freeman v. United States, 556 F.3d
326, 341-42 (5th Cir. 2009).    Accordingly, the district court’s dismissal of
Nyabwa’s FTCA complaint is AFFIRMED.
      Although this appeal is not frivolous overall, Nyabwa has included in
this complaint and appeal many of the same arguments and claims that have



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                                 No. 17-20466

already been dismissed as frivolous in various other contexts by the district
courts and this court.     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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