Daniels v. USA

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11357
Conference Calendar
SHELBY LEE DANIELS,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-322-G
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Shelby Lee Daniels, federal prisoner # 22481-077, appeals
the district court’s denial of his motion to amend his complaint,
as well as the court’s dismissal of his 28 U.S.C. § 1331 action
seeking restitution for the seizure and forfeiture of a 1977
Mercedes Benz. The district court held that the United States of
America was entitled to sovereign immunity.
Daniels contends that he was not given the opportunity to
amend his pleadings to state a cause of action pursuant to Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

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No. 01-11357
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U.S. 388 (1971). However, Daniels never filed an amended
complaint pursuant to FED. R. CIV. P. 15(a), and his motion to
amend did not comply with the local rules. See Layfield v. Bill
Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979).
Additionally, any amendment of Daniels’ complaint to allege a
Bivens action would have been futile given that it would not have
been timely. See Pena v. United States, 157 F.3d 984, 987 (5th
Cir. 1998).
Daniels also argues that the district court did not address
his due process claim. Even if Daniels could show a due process
violation, he would not be able to recover money damages from the
United States due to its sovereign immunity. See Pena, 157 F.3d
at 987. Daniels has abandoned any challenge to the district
court’s finding that the Government is protected by sovereign
immunity by failing to raise or brief this issue on appeal. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
AFFIRMED.

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