Case: 10-10298 Document: 00511411101 Page: 1 Date Filed: 03/15/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 15, 2011

                                       No. 10-10298                         Lyle W. Cayce
                                                                                 Clerk

OSTAP KAPELIOUJNYI

                                                   Plaintiff-Appellant
v.

WARDEN K. DIXON, Dalby Correctional Facility; WARDEN L. BOND,
Programs Warden at Dalby; H. Bryan, Security Warden at Dalby; CAPTAIN
E. MATHIS, at Dalby; F. POSTEL, Programs Manager at Dalby; M. CRUISE,
Librarian at Dalby; JOHN AND JANE DOE, known and unknown, As
Employees and in their individual capacities; MANAGEMENT AND
TRAINING CORPORATION, Manages Dalby Correctional Facility and
employs all Defendants named above,

                                                   Defendants-Appellees




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC. No. 5:09-CV-100


Before JONES, Chief Judge, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
       Appellant Ostap Kapelioujnyi is a federal prisoner who at one time was
housed at the Giles W. Dalby Correctional Facility (the Dalby Facility) in Post,
Texas. Appellant brought a suit pursuant to 42 U.S.C. § 1983, claiming his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-10298 Document: 00511411101 Page: 2 Date Filed: 03/15/2011



                                         No. 10-10298

constitutional rights had been violated at the Dalby Facility. The court below
characterized his claim as a Bivens claim 1 and dismissed his constitutional
claims and declined to exercise supplemental jurisdiction over the state law
claims complained of by Appellant.
          On appeal, Appellant contends that the district court erred in
characterizing his claim as a Bivens claim, asserting that he has properly stated
a claim under § 1983; or in the alternative, he has made a proper complaint
under Bivens. Whether or not Appellant’s claim is properly viewed as a Bivens
claim or a § 1983 claim, we find no error in the decision of the district court to
dismiss for failure to state a claim upon which Appellant can recover.
Accordingly, the judgment of the district court is AFFIRMED.




          1
              Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

(1971).

                                                2