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Adongo v. State of Texas, 04-10714 (2005)

Court: Court of Appeals for the Fifth Circuit Number: 04-10714 Visitors: 11
Filed: Jan. 07, 2005
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 January 6, 2005 Charles R. Fulbruge III Clerk No. 04-10714 Summary Calendar CALEB OUMA ADONGO Plaintiff - Appellant v. STATE OF TEXAS, Tarrant County Department of Community Supervision; STATE OF FLORIDA, Department of Corrections, Volusia County Commissioner; EMBRY RIDDLE UNIVERSITY, Campus Safety Florida Defendants - Appellees - Appeal from the United States District Court for the
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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                 January 6, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-10714
                         Summary Calendar



CALEB OUMA ADONGO

                     Plaintiff - Appellant

     v.

STATE OF TEXAS, Tarrant County Department of Community
Supervision; STATE OF FLORIDA, Department of Corrections,
Volusia County Commissioner; EMBRY RIDDLE UNIVERSITY, Campus
Safety Florida

                     Defendants - Appellees

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:03-CV-1211-Y
                       --------------------

Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.

PER CURIAM:*

     Caleb Ouma Adongo, Texas inmate #0405821, proceeding pro se

and in forma pauperis (“IFP”), appeals the district court’s final

judgment that dismissed his 42 U.S.C. § 1983 complaint.       Adongo

contends that the district court erred by dismissing his claims

against the Tarrant County, Texas, Department of Community

Supervision and the Volusia County, Florida, Department of

Corrections.   He argues that the Eleventh Amendment does not

     *
       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. 04-10714
                                 -2-

prohibit suits under 42 U.S.C. § 1983 against municipal

corporations.

     We review Adongo’s contentions de novo.     Cozzo v. Tangipahoa

Parish Council, 
279 F.3d 273
, 280 (5th Cir. 2002); Ruiz v. United

States, 
160 F.3d 273
, 275 (5th Cir. 1998).   The district court

did not dismiss as barred by the Eleventh Amendment claims

against a municipal corporation.   The district court dismissed on

immunity grounds claims against the State of Florida, Department

of Corrections and the State of Texas, Tarrant County Department

of Community Supervision.   Eleventh Amendment immunity bars

claims under 42 U.S.C. § 1983 against these entities.     See Oliver

v. Scott, 
276 F.3d 736
, 742 n.5 (5th Cir. 2002); Hardin County

Cmty. Supervision and Corrs. Dep’t v/ Sullivan, 
106 S.W.3d 186
,

187 (Tex. App. 2003); Howlett v. Rose, 
496 U.S. 356
, 365 (1990);

Hill v. Dep’t of Corrs., 
513 So. 2d 129
, 130, 133 (Fla. 1987).

     Adongo has not adequately briefed an argument challenging

the district court’s reasons for dismissing without prejudice for

lack of personal jurisdiction the claims against the unnamed

Volusia County Commissioner, the Department of Campus Safety, and

the Embry-Riddle Aeronautical University.    Accordingly, he has

abandoned any appeal of this issue.   FED. R. APP. P. 28; Grant v.

Cuellar, 
59 F.3d 523
, 524 (5th Cir. 1995); Brinkmann v. Dallas

County Deputy Sheriff Abner, 
813 F.2d 744
, 748 (5th Cir. 1987).

     Adongo asserts that he was denied due process during his

arrest, detention, and revocation proceedings.    He contends that
                            No. 04-10714
                                 -3-

Texas delayed in completing his extradition, the delay

constituted a waiver, his arrest was made without a warrant, he

was denied counsel, the motion to revoke was invalid and

defective, his probation officers refused to appear at the

revocation hearing, he was denied the right to confront his

probation officers regarding the charged violations, and that

favorable evidence was destroyed.    As the district court

determined, under Heck v. Humphrey, 
512 U.S. 477
, 486 (1994), a

favorable ruling on these 42 U.S.C. § 1983 claims would call into

question the validity of the judgment that revoked Adongo’s

probation.

     Heck is applicable to 42 U.S.C. § 1983 claims that challenge

revocation proceedings.    See Littles v. Bd. of Pardons and

Paroles Div., 
68 F.3d 122
, 123 (5th Cir. 1995); McGrew v. Texas

Bd. of Pardons and Paroles, 
47 F.3d 158
, 161 (5th Cir. 1995).

The district court did not err when it determined that Adongo may

not obtain relief under 42 U.S.C. § 1983 because he has not shown

that the judgment that revoked his probation is reversed or

otherwise called into question.     See 
Heck, 512 U.S. at 486-87
;

Littles, 68 F.3d at 123
.

     Accordingly, the judgment is AFFIRMED.    The district court’s

dismissal of Adongo’s complaint counts as a strike for purposes

of 28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 
103 F.3d 383
,

387 (5th Cir. 1996).   Adongo is cautioned that once he

accumulates three strikes, he may not proceed IFP in any civil
                           No. 04-10714
                                -4-

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; SANCTION WARNING ISSUED.

Source:  CourtListener

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