     Case: 17-20066           Document: 00514228948        Page: 1    Date Filed: 11/07/2017




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

                                        No. 17-20066
                                                                                       Fifth Circuit

                                                                                     FILED
                                      Summary Calendar                       November 7, 2017
                                                                                Lyle W. Cayce
COLLINS O. NYABWA,                                                                   Clerk


                                                     Plaintiff-Appellant

v.

UNKNOWN JAILERS AT CORRECTIONS CORPORATION OF AMERICA,

                                                     Defendant-Appellee


                        Appeal from the United States District Court
                             for the Southern District of Texas
                                   USDC No. 4:16-CV-782


Before DAVIS, CLEMENT, and OWEN, 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 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief
can be granted. In that complaint, Nyabwa claimed that unknown jailers
employed by the Corrections Corporation of America violated his constitutional


         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 the Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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                                  No. 17-20066

rights by 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 the defendants because Bivens did not extend to a
damages claim against private entities, and (2) Nyabwa failed to state a false
imprisonment claim under Texas state law. It also denied his motions for
recusal, a hearing regarding his recusal motion, and default judgment. 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 motion
for leave to file a supplemented or corrected appeal brief is GRANTED.
      We review de novo a dismissal for failure to state a claim under
§ 1915(e)(2)(B)(ii). See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998).
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 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citation omitted).




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      The district court properly determined that Nyabwa’s complaint failed
to state a claim upon which relief can be granted. Pursuant to Minneci v.
Pollard, 565 U.S. 118, 124-25, 131 (2012), a federal prisoner cannot pursue a
Bivens claim against the private company that operated the federal facility
because where the challenged “conduct is of a kind that typically falls within
the scope of traditional state tort law . . ., the prisoner must seek a remedy
under state tort law” instead of under Bivens.     As noted by Nyabwa, the
Supreme Court in Minneci reaffirmed its earlier holding in Correctional Servs.
Corp. v. Malesko, 534 U.S. 61, 63 (2001), that 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 or Minneci are not
applicable here because he claims to be actually innocent. 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). To the
extent Nyabwa seeks to invoke Nelson v. Colorado, 137 S. Ct. 1249 (2017), we
need not consider that argument because it is raised for the first time on
appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999). In any event, Nelson does not directly support his argument because
that case did not involve a claim of false imprisonment.
      The district court’s determination, under supplemental jurisdiction, that
Nyabwa failed to state a claim of false imprisonment under Texas state law is
supported by relevant law. See Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d
539, 540 (Tex. 1998); James v. Brown, 637 S.W.2d 914, 918 (Tex. 1982); see also
Pete v. Metcalfe, 8 F.3d 214, 218-19 (5th Cir. 1993).        Because Nyabwa’s



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conclusory arguments for recusal were based on the district 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 a hearing on the
recusal issue. 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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