IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30930

Summary Calendar

CARL WAYNE STEWART,

Plaintiff-Appellant

v.

STATE OF LOUISIANA; CITY OF NATCHITOCHES,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:15-CV-1934

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Carl Wayne Stewart appeals the district court’s dismissal of his civil 

rights complaint filed in forma pauperis (IFP). See 28 U.S.C. § 1915(a). He 

argues that the district court erred as follows: by referring his case to the 

magistrate judge, without obtaining his consent, as required by Federal Rule 

of Civil Procedure 73; by adopting the magistrate judge’s allegedly inadequate 

analysis and conclusions, without considering the arguments Stewart 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 6, 2017

Lyle W. Cayce

Clerk

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No. 15-30930

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advanced, which, Stewart says, departed from the usual and accepted course 

of judicial proceedings and constituted an abuse of discretion; and by 

dismissing his complaint sua sponte before the defendants made an 

appearance and based on reasons not raised by the parties.

Consent is not required when, as here, the district court refers a case to 

the magistrate judge to hear pretrial matters dispositive of claims and to enter 

a recommended disposition. FED. R. CIV. P. 72(b)(1). Stewart was afforded 

the opportunity to object to the magistrate judge’s report and challenge the 

inadequacy of the analysis and conclusions. See FED. R. CIV. P. 72(b)(2). In 

compliance with Rule 72, the district court considered de novo Stewart’s 

objections and overruled them. See FED. R. CIV. P. 72(b)(3). The district court 

is required to dismiss a complaint filed IFP at any time if determines that the 

case is frivolous or malicious, fails to state a claim upon which relief may be 

granted, or seeks monetary relief against a defendant who is immune from 

such relief. § 1915(e)(2)(B)(i)-(iii). This includes the time before defendants

are served, make an appearance, or file an answer. See Green v. McKaskle, 

788 F.2d 1116, 1119 (5th Cir. 1986). As shown by the foregoing, the district 

court did not commit any procedural error in the treatment of Stewart’s 

complaint.

Stewart does not challenge the magistrate judge’s ruling, adopted by the 

district court, that Stewart’s claims against the State and the City were not 

cognizable under 42 U.S.C. § 1983 and thus frivolous. Accordingly, he has 

abandoned any arguments challenging the dismissal of his claims as frivolous. 

See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th 

Cir. 1987); see also Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) 

(stating that pro se plaintiffs, like other litigants, must brief arguments to 

preserve them). Moreover, Stewart had an opportunity to raise such a 

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challenge in his objections to the MJ’s report and recommendation, but he did 

not do so.

The judgment of the district court is AFFIRMED. Stewart’s motion for 

an appellate conference or, in the alternative, an evidentiary hearing to aid 

appellate review is DENIED.

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