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

                                                FILED
                                                             November 17, 2009
                               No. 09-10360
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

JED STEWART LINEBERRY,

                                           Plaintiff-Appellant

v.

UNITED STATES OF AMERICA

                                           Defendant-Appellee


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:08-CV-597


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
      Jed Stewart Lineberry, federal prisoner # 10296-078, is appealing the
district court’s order dismissing for lack of subject matter jurisdiction his
complaint seeking damages pursuant to the Federal Tort Claims Act (FTCA).
He has filed a motion for leave to proceed in forma pauperis (IFP) on appeal,
challenging the district court’s denial of IFP and certification that his appeal




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 09-10360

would not be taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997); 28 U.S.C. § 1915(a)(3); F ED. R. A PP. P. 24(a)(3).
      Lineberry alleged in the district court that he was injured while
incarcerated at FCI Seagoville because the facility housed illegal prisoners and
gang members, was overcrowded, and because staff members encouraged other
inmates to attack him because he had filed a complaint complaining about the
facility. He argues on appeal that the district court deprived him of his right to
a jury trial by dismissing the case without considering the merits of his claims.
A jury trial was not required under the FTCA. See 28 U.S.C. § 2402; Andrade
v. Chojnacki, 338 F.3d 448, 457 (5th Cir. 2003).
      He also argues that he was not placed on notice that a F ED. R. C IV. P.
12(b)(1) motion to dismiss for lack of subject matter jurisdiction had been filed
by the defendant and was not advised of the consequences if he failed to respond.
He contends that he was entitled to submit facts in support of jurisdiction and
that he should have been allowed to file an amended complaint to add the facts
necessary to prove jurisdiction.
      The party asserting subject matter jurisdiction in response to a Rule
12(b)(1) motion to dismiss bears the burden of proof. Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001). Contrary to Lineberry’s assertions, the United
States stated in its motion that it was seeking dismissal of Lineberry’s FTCA
claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
Lineberry received the motion and filed a lengthy, detailed response, including
a specific response that the district court retained jurisdiction because the
defendant’s actions were not protected by the discretionary act exception. He
also filed objections to the magistrate judge’s recommendation that the
complaint be dismissed for lack of subject matter jurisdiction. Although his
objections included a request for discovery and a hearing to introduce facts to
rebut the facts submitted by the defendant, he has not identified any specific
evidence that he intended to introduce to show that the acts complained of fell

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                                  No. 09-10360

outside the discretionary decision exception. Nor has he asserted what new facts
that he would allege in a second amended complaint to support his claims.
Lineberry had an adequate opportunity to provide facts to support his claim of
federal subject matter jurisdiction and he failed to do so.
      Lineberry repeats his complaints that he was injured as a result of
overcrowded conditions, the staff assisting inmates in assaulting him in
retaliation for his filing a complaint against the staff, and other acts. He has not
addressed the district court’s determination that his FTCA complaints about his
placement, overcrowding, under staffing, and the dangerous population are
barred by the discretionary function exception. Thus, he has abandoned these
claims on appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
      Regarding Lineberry’s claim of retaliation on the part of the defendant, he
has not challenged the magistrate judge’s determination that he failed to allege
wrongdoing based on acts or omissions that occurred while BOP officials were
engaged in investigative or law enforcement activities.         Thus, he has not
challenged the finding that his claim falls under the intentional tort exception
of the FTCA. 28 U.S.C. § 2680(h). Therefore, he has also abandoned that issue
on appeal. Brinkmann, 813 F.2d at 748. Nor has Lineberry challenged on
appeal the dismissal of his 42 U.S.C. 1983 complaint for failure to state a claim
against a state actor. Thus, that claim is also abandoned. Id.
      Insofar as Lineberry contends that he is seeking injunctive relief, his claim
is moot because he has been transferred and is no longer housed at the
Seagoville facility. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001).
      Lineberry’s appeal is without arguable merit and, thus, should be
dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5 TH C IR. R. 42.2. The dismissal of this appeal as frivolous counts as a
strike under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996).

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                   No. 09-10360

APPEAL DISMISSED; MOTION DENIED




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