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Ganesan v. James, 03-11187 (2004)

Court: Court of Appeals for the Fifth Circuit Number: 03-11187 Visitors: 72
Filed: Oct. 19, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 19, 2004 Charles R. Fulbruge III Clerk No. 03-11187 Summary Calendar APPARAJAN GANESAN, Plaintiff-Appellant, versus SHIRLEY JAMES, Administrative Tech II; MICHAEL UPSHAW, Warden; JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Defendants-Appellees. - Appeal from the United States District Court for the Northern District of Texas USDC N
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 19, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-11187
                         Summary Calendar



APPARAJAN GANESAN,

                                    Plaintiff-Appellant,

versus

SHIRLEY JAMES, Administrative Tech II; MICHAEL UPSHAW, Warden;
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 2:02-CV-129
                      --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Apparajan Ganesan, Texas prisoner # 904088, appeals the

dismissal of his civil rights action and the imposition of

Rule 11 sanctions.   The district court dismissed, as frivolous,

Ganesan’s claims against Warden Michael Upshaw (Upshaw) and Janie

Cockrell (Cockrell) and certain claims against Shirley James

(James), after finding that Ganesan had not demonstrated the

denial of a constitutional right.   The district court also found


     *
       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.
                           No. 03-11187
                                -2-

that Ganesan made misrepresentations calculated to mislead the

court and issued an order to show cause why he should not be

sanctioned.   After Ganesan failed to respond to the show cause

order, the district court dismissed the remainder of Ganesan’s

claims, issued a monetary sanction of $100, and barred Ganesan

from making any subsequent filings until the sanction was

satisfied or judicial approval was previously obtained.

     On appeal, Ganesan does not provide any legal arguments or

authority challenging the district court’s determinations that

Ganesan has not demonstrated the denial of a constitutional right

as to Upshaw and Cockrell and that sanctions were appropriate

because Ganesan made misrepresentations to the court.   Although

pro se 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).   Because Ganesan fails to

address the district court’s factual basis for dismissing these

claims as frivolous and issuing sanctions, he has abandoned these

issues.   See 
id. The claims
Ganesan has not abandoned are his claims that, on

April 25, 2002, James was verbally abusive, that, on April 25,

2002, James threatened Ganesan’s physical safety, and that, after

April 25, 2002, and in retaliation for a previously filed

lawsuit, James denied Ganesan access to the courts.   As for

Ganesan’s claim of verbal abuse, mere allegations of verbal abuse
                           No. 03-11187
                                -3-

do not present an actionable § 1983 claim.   Siglar v. Hightower,

112 F.3d 191
, 193 (5th Cir. 1997); Bender v. Brumley, 
1 F.3d 271
,

274 n.4 (5th Cir. 1993).   As for Ganesan’s claim that James

threatened his physical safety, a review of record reveals a lack

of facts to support this allegation, and the district court,

therefore, did not abuse its discretion in dismissing this claim.

     As for Ganesan’s claim that James retaliated against him and

denied him access to the courts by James’ refusal to deliver

Ganesan’s mail to him and James’ denial of a protective escort

for Ganesan to the mailroom to pick up his mail, Ganesan must

show that he has been denied a specific constitutional right.

See Tighe v. Wall, 
100 F.3d 41
, 43 (5th Cir. 1996).   A review of

the record reveals that Ganesan refused to pick up his mail from

the mailroom.   There is no evidence that the mailroom failed to

inform Ganesan that he had mail in the mailroom or that the

mailroom refused to give Ganesan his mail when he came to the

mailroom.   Therefore, because Ganesan did not make the necessary

showing of a violation of a constitutional right, the district

court did not abuse its discretion in dismissing, as frivolous,

Ganesan’s claims.   See Arnaud v. Odom, 
870 F.2d 304
, 307 (5th

Cir. 1989) (Mere “conclusory allegations” are not sufficient to

establish a § 1983 claim.).

     The district court’s dismissal of Ganesan’s complaint and

this court’s affirmance count as one “strike” for purposes of

28 U.S.C. § 1915(g).   See Adepegba v. Hammons, 
103 F.3d 383
,
                           No. 03-11187
                                -4-

387-88 (5th Cir. 1996).   Ganesan is cautioned that if he

accumulates three “strikes,” he will not be able to 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 28 U.S.C.

§ 1915(g).

     AFFIRMED; SANCTIONS WARNING ISSUED.

Source:  CourtListener

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