     Case: 10-10152 Document: 00511322266 Page: 1 Date Filed: 12/15/2010




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

                                                 FILED
                                                                         December 15, 2010
                                     No. 10-10152
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ABEL REYES CASAS,

                                                   Plaintiff-Appellant

v.

BRANDON ADUDDELL, Sergeant; NFN CHRISTIAN, Sergeant; M.D.
SAVERS, Assistant Warden; JOHN LAVELLE, Doctor; DUSTIM FRAZIER,
Doctor,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 2:07-CV-210


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Abel Reyes Casas, Texas prisoner # 1204752, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 complaint arising from a
use-of-force incident that occurred on July 29, 2006. Casas contends that the
district court erred in dismissing his claims against defendants Brandon
Aduddell and NFN Christian for failure to exhaust administrative remedies. He



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-10152 Document: 00511322266 Page: 2 Date Filed: 12/15/2010

                                  No. 10-10152

also contends that the district court erred in dismissing his claims against
defendants M.D. Savers, John Lavelle, and Dustim Frazier as frivolous or for
failure to state a claim on which relief can be granted.
      A prisoner who wishes to file a § 1983 suit for damages against prison
officials must exhaust administrative remedies before doing so.          42 U.S.C.
§ 1997e(a); Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). We review
de novo a district court’s dismissal for failure to exhaust administrative
remedies. Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir.2007).
      Casas asserts that (1) he exhausted his administrative remedies when he
raised the use-of-force incident in the Step 2 grievance that he filed in grievance
# 2006181792, citing the Offender Grievance Manual in support of his argument;
(2) he had no control over the grievance number that the grievance investigator
assigned to his Step 2 grievance; and (3) the exhaustion requirement discourages
prison administrators from responding to Step 2 grievances. Id. Casas did not
present either the Offender Grievance Manual or these arguments in the district
court. “An appellate court may not consider new evidence furnished for the first
time on appeal and may not consider facts which were not before the district
court at the time of the challenged ruling.” Theriot v. Parish of Jefferson, 185
F.3d 477, 491 n.26 (5th Cir. 1999); see also Hannah v. United States, 523 F.3d
597, 600 n.1 (5th Cir. 2008) (refusing to consider federal prisoner’s deliberate
medical indifference claim because he failed to raise it in the district court ). We
need not consider the arguments Casas raises in his appellate brief. See Theriot,
185 F.3d at 491 n.26. Casas has thus failed to establish that the district court
erred when it determined that he failed to exhaust his administrative remedies
as to defendants Aduddell and Christian. See Carbe, 492 F.3d at 327; Johnson,
385 F.3d at 515.
      Casas also insists that the district court erroneously dismissed his claims
against Savers, Lavelle, and Frazier as frivolous. Casas asserts that his claims



                                         2
     Case: 10-10152 Document: 00511322266 Page: 3 Date Filed: 12/15/2010

                                   No. 10-10152

were not “fantastic or delusional.” He alternatively contends that he should
have been permitted to amend his complaint.
      A district court must sua sponte dismiss a prisoner’s in forma pauperis
§ 1983 complaint if the action is malicious or frivolous or fails to state a claim on
which relief can be granted. 28 U.S.C. § 1915(e)(2)(B). When a party fails timely
to file written objections to the magistrate judge’s proposed findings, conclusions,
and recommendation, that party is barred from attacking on appeal the
unobjected-to proposed findings and conclusions which the district court
accepted, except for plain error, “provided that the party has been served with
notice that such consequences will result from a failure to object.” Douglass v.
United Serv. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc); see 28
U.S.C. § 636(b)(1).
      Casas was provided the notice required under Douglass in the magistrate
judge’s report and recommendation, yet he did not file objections to that report
and recommendation. We therefore review the district court’s dismissal of
Savers, Lavelle, and Frazier for plain error. See Douglass, 79 F.3d at 1428-29.
To show plain error, the appellant must identify an error that is clear or obvious
and that affects his substantial rights. Wright v. Ford Motor Co., 508 F.3d 263,
272 (5th Cir. 2007). When the nature of the claimed error is a question of fact,
however, the possibility that such a finding could rise to the level of obvious
error required to meet part of the standard for plain error is remote. Robertson
v. Plano City of Texas, 70 F.3d 21, 23 (5th Cir. 1995).
      Casas’s appeal is based on his contention that the magistrate judge’s
findings of fact and conclusions of law are erroneous. Casas’s argument involves
factual questions that could have been resolved had he raised them in the
district court. Furthermore, Casas’s characterization of the medical treatment
he received still does not constitute deliberate medical indifference. See Gobert
v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Casas is not entitled to relief on
grounds of plain error. See Robertson, 70 F.3d at 23.

                                         3
    Case: 10-10152 Document: 00511322266 Page: 4 Date Filed: 12/15/2010

                                 No. 10-10152

      Casas alternatively contends that the district court should have granted
him leave to amend his complaint instead of dismissing it. The district court did
not err in failing sua sponte to grant Casas leave to amend his complaint. See
Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009), cert. denied, 130 S. Ct.
3368 (2010) (finding that the record before the district court suggested that the
plaintiff had pleaded his best case and that leave to amend was not necessary
because the facts underlying the complaint did not rise to the level of a viable
constitutional claim). Furthermore, Casas has failed to allege any additional
facts that would have overcome the deficiencies found by the district court if he
had been granted leave to amend. See id.
      AFFIRMED.




                                       4
