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 complaint, 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 Bivens1 claim, and dismissed the complaint as 

* 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.

1 Bivens v. Six Unknown Named 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

 

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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 his 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). The magistrate judge conducted a 

Spears2 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. Although pro so briefs are 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, 224-25 (5th Cir. 1993). 

Accordingly, whether construed as a § 1983 action or a Bivens action, AcostaSolano has abandoned his claims before this court by failing to raise them on 

appeal. Therefore, his appeal is dismissed as frivolous. See 5TH CIR. R. 42.2. 

The district court’s dismissal of his complaint and this court’s dismissal 

of this appeal as frivolous count as two strikes for purposes of 28 U.S.C. 

§ 1915(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 proceed in forma pauperis in any civil action or appeal 

2 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

2

 

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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. 

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