### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 11237 Summary Calendar

EDUARDO ACOSTA

- SOLANO , Plaintiff

- Appellant

v. GILES W. DALBY CORRECTIONAL FACILITY , Defendant

- Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:12

- CV

- 142

Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges. PER CURIAM: * Eduardo Acosta

- Solano, federal prisoner # 98019

- 198, is housed at the Giles W. Dalby Correctional Facility (the Dalby Facility) in Post, Texas. Acosta

- Solano filed a comp laint, pursuant to 42 U.S.C. § 1983, claiming his constitutional rights had been violated at the Dalby Facility. The district court characterized his claim as a Bivens 1 claim , and dismissed the complaint as

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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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

1 Bivens v. Six Unknown Na med Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). United States Court of Appeals Fifth Circuit 

### FILED December 31, 2013 Lyle W. Cayce Clerk Case: 12-11237 Document: 00512485474 Page: 1 Date Filed: 12/31/201312

- 11237 frivolous, finding that a Bivens actions could not be brought against a private entity. On appeal, Acosta

- Solano contends that the district court should have given him an opportunity to amend h is complaint prior to dismissing it as frivolous. We review the district court’s dismissal of a complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. Brewster v. Dretke , 587 F.3d 764, 767 (5th Cir. 2009). T he magistrate judge conducted a Spears 2 hearing , thereby giving Acosta

- Solano an opportunity to amend his complaint. See Eason v. Thaler , 14 F.3d 8, 9 (5th Cir. 1994)

. Further, at the Spears hearing, Acosta

- Solano declined to name any other individual as a defendant in his complaint. Thus, Acosta

- Solano’s argument that the district court failed to give him an opportunity to amend his complaint is not supported by the record. Moreover, Acosta

- Solano fails to explain in his brief how the Dalby Facility or any other individual for that matter, violated his constitutional rights. A lthough pro so briefs a re afforded liberal construction, Haines v. Kerner , 404 U.S. 519, 520 (1972), even pro se litigants must brief arguments in order to preserve them. Yohey v. Collins , 985 F.2d 222, 224

- 2 5 (5th Cir. 1993). Accordingly , whether construed as a § 1983 action or a Bivens action, Acosta

Solano has abandoned his claims before this court by fa iling to raise the m on appeal. Therefore, his appeal is dismissed a s frivolous. See 5 TH C IR . R. 42.2. The district court’s dismissal of his complaint and this court’s dismissal of this a ppeal as frivolous count as two strikes for purposes of 28 U.S.C. § 1 915(g). See Adepegba v. Hammons , 103 F.3d 383, 385

- 87 (5th Cir. 1996). Acosta

- Solano is cautioned that if he accumulates three strikes under § 1915(g), he may not pro ceed in forma pauperis in any civil action or appeal

2 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). 2 Case: 12-11237 Document: 00512485474 Page: 2 Date Filed: 12/31/201312

- 11237 filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). APPEAL DISMISSED; SANCTION WARNING ISSUED.

3 Case: 12-11237 Document: 00512485474 Page: 3 Date Filed: 12/31/2013