IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40875

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

July 12, 2016

Lyle W. Cayce

Clerk

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No. 15-40875

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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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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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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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