     Case: 15-40875      Document: 00513588871         Page: 1    Date Filed: 07/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-40875                                   FILED
                                  Summary Calendar                             July 12, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
DONALD A. DINN,

                                                 Plaintiff-Appellant

v.

NUECES COUNTY; PATSY PEREZ; ELISA AVILA,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:15-CV-67


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Donald A. Dinn, currently Texas prisoner # 1876170, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint, which the district court
concluded was frivolous and failed to state a claim. A prisoner’s in forma
pauperis complaint “shall” be dismissed if it is frivolous or fails to state a claim
on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i), (ii); 28 U.S.C.
§ 1915A(b)(1); Morris v. McAllester, 702 F.3d 187, 189 (5th Cir. 2012). We


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40875

review the district court’s dismissal de novo. See Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005). A complaint is frivolous if it has no “arguable basis
in fact or law.” Morris, 702 F.3d at 189. In order to state a claim for relief, “a
complaint must 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).
      In the district court, Dinn argued that an employee of the Nueces County
Child Support Division acted with deliberate indifference by placing a lien on
a piece of real estate Dinn was attempting to sell and by failing to give him
adequate notice of the lien; the child support debt was owed by Dinn’s
girlfriend, and he concedes that an employee of the title company handling the
closing had advised the title company that they were married. Although the
district court considered the claim under the grounds of municipal liability,
Dinn has asserted that he was not making such a claim, and he does not brief
the argument on appeal, so it is deemed abandoned. See Brinkmann v. Dallas
Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Dinn has not
established that the employee’s reaction to the information he or she received
was more than “merely inept, erroneous, ineffective, or negligent,” which does
not rise to the level of deliberate indifference. Alton v. Texas A & M Univ., 168
F.3d 196, 201 (5th Cir. 1999). As Dinn concedes that he received actual notice
that the lien was going to be imposed well before the sale of the property
occurred, due process was satisfied. See In re Sam, 894 F.2d 778, 782 (5th Cir.
1990) (bankruptcy proceeding). Although Dinn complains that the defendant
failed to give him an opportunity to challenge the lien, he cites to no authority
for the proposition that his decision to pay the lien rather than challenge it
resulted in the absence of an opportunity to respond. Although Dinn raises
arguments that his girlfriend paid off the debt in 2010 and that the State



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                                  No. 15-40875

relieved her of her child support obligations in 2012, we decline to consider new
legal theories and arguments raised for the first time on appeal. See Leverette
v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
        Dinn also contends that defendants Perez and Avila violated his right of
access to the courts by refusing to file his notice of appeal after the dismissal
of one defendant in a state proceeding challenging the imposition of the lien.
To succeed on such a claim, Dinn must show that the appeal was not frivolous.
See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Because Dinn was
not entitled to file an interlocutory appeal under these circumstances, he has
not made the requisite showing. See Commercial Std. Ins. Co. v. Stonewall
Ins. Co., 469 S.W.3d 310, 311 (Tex. App. 1971). Dinn’s assertion that these
defendants failed to respond to his motion or findings of fact or conclusions of
law with respect to this dismissal of the first defendant and his challenges to
the state court’s actions relating to the entry of a final judgment are raised for
the first time on appeal and will not be considered. See Leverette, 183 F.3d at
342.
        The plain language of § 1915 authorizes dismissal of a civil action “at
any time,” and § 1915A(a) and (b) permit a dismissal after a review which
should occur “as soon as practicable after docketing.” Dinn therefore was not
entitled to discovery prior to the dismissal of his civil rights complaint. See
Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991). Dinn’s attempt to
remove the action dismissed by the state court is not authorized. See 28 U.S.C.
§ 1446(a). His motion to add new defendants directly to the federal proceeding,
along with additional claims against those defendants, does not warrant
consideration. See Leverette, 183 F.3d at 342.
        Dinn has not shown that the district court erred in dismissing his civil
rights complaint as frivolous and for failure to state a claim. See Morris, 702



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                                  No. 15-40875

F.3d at 189. Consequently, the judgment of the district court is affirmed. The
district court’s dismissal of Dinn’s complaint as frivolous and for failure to state
a claim counts as a strike for purposes of § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996). Dinn is warned that if he accumulates three
strikes, he may not proceed in forma pauperis in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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