United States Court of Appeals

for the Fifth Circuit ____________

No. 22-40725

consolidated with

No. 23-40017

Summary Calendar

____________

Daniel Neal Martin, 

Plaintiff—Appellant, 

versus

Sheriff Larry Busby; Charlie Stroleny, Chief Deputy; 

Deputy Nowlan; Deputy Peerman; Deputy Salinas, 

Defendants—Appellees. 

______________________________

Appeals from the United States District Court 

for the Southern District of Texas

USDC Nos. 2:22-CV-181, 2:22-CV-181

______________________________

United States Court of Appeals

Fifth Circuit

FILED

August 3, 2023

Lyle W. Cayce

Clerk

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Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam:*

Daniel Neal Martin, Texas prisoner # 26884, appeals the dismissal of 

his 42 U.S.C. § 1983 suit as either frivolous or for failure to state a claim upon 

which relief may be granted, or both, under 28 U.S.C. §§ 1915(e)(2)(B) and 

1915A(b)(1). Martin alleged that the defendants violated his civil rights by 

not investigating and prosecuting claims he made about numerous private 

citizens committing acts of violence against him. Martin also moves for 

appointment of counsel.

We review the dismissal for failure to state a claim or as frivolous 

under §§ 1915(e)(2)(B) and 1915A(b)(1) de novo. See Geiger v. Jowers, 

404 F.3d 371, 373 (5th Cir. 2005). To determine whether an action states a 

claim on which relief may be granted, a court must determine whether the 

complaint “contain[s] 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). A complaint is 

frivolous “if it lacks an arguable basis in fact or law.” Berry v. Brady, 192 F.3d 

504, 507 (5th Cir. 1999) (internal quotation marks omitted).

Martin argues that the district court erred when it dismissed his claims 

of sex and gender discrimination, failure of the defendants to investigate and 

prosecute claims, and failure of the defendants to protect him. He reiterates 

his claim that private citizens committed acts of violence against him and that 

the defendants failed to investigate or prosecute those claims after he 

reported them.

_____________________

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

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First, Martin has not shown that the district court erred in dismissing 

the sex and gender discrimination claim because he offers nothing more than 

a personal belief, rather than an allegation of specific acts, to demonstrate he 

was the subject of such discrimination by the defendants or any other 

individual. See Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995). Second, 

Martin also has not demonstrated that the district court erred in dismissing 

his failure-to-investigate and failure-to-prosecute claims as he has no 

constitutional right to have state officials investigate and prosecute

individuals. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); Lefebure 

v. D’Aquilla, 15 F.4th 650, 654-55 (5th Cir. 2021); Oliver v. Collins, 914 F.2d 

56, 60 (5th Cir. 1990). Finally, any failure by the defendants to protect 

Martin does not implicate his rights under the Eighth or Fourteenth 

Amendments. See Farmer v. Brennan, 511 U.S. 825, 833 (1994); DeShaney v. 

Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 197 (1989); Kovacic v. 

Villareal, 628 F.3d 209, 213 (5th Cir. 2010).

In addition, Martin raises claims of excessive force, due process 

violations, deliberate indifference to his medical needs, and unconstitutional 

conditions of confinement. Because Martin did not raise these claims in the 

suit forming the basis of this appeal, we will not consider them in this appeal. 

See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).

Based on the foregoing discussion, the district court did not err in 

dismissing Martin’s complaint as eitherfrivolous or for failure to state a claim 

upon which relief may be granted. See Iqbal, 556 U.S. at 678; Berry, 192 F.3d 

at 507. The judgment of the district court is AFFIRMED, and Martin’s 

motion for appointment of counsel is DENIED. The district court’s 

dismissal of Martin’s complaint under § 1915(e)(2)(B) counts as a single 

strike under § 1915(g). See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 

387 (5th Cir. 1996), abrogated in part on other grounds by Coleman, 575 U.S. 

534-41. Accordingly, Martin is WARNED that if he accumulates three 

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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).

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