IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10903 Summary Calendar

SALVADORE RAMIREZ,

Plaintiff-Appellant,

versus

BOB GUZIK, Warden,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CV-409-Y -------------------- March 27, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Salvadore Ramirez (federal prisoner #07605-040) appeals the

district court’s final judgment dismissing his Bivens1 action as

frivolous under

(e)(2)(B)(I), 1915A(b)(1). He

argues that the district court erred in dismissing his complaint

for the sole reason that he listed Warden Bob Guzik as the only

named defendant. He maintains that Warden Guzik was a properly

named defendant based on his “executive” position at the Federal

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 Fed. Bureau of Narcotics,

(1971). No. 00-10903 -2-

Medical Center in Fort Worth, Texas. Alternatively, he argues

that the district court should have at least given him an

opportunity to amend his complaint prior to dismissal.

As the district court noted, Ramirez has not alleged that

Warden Guzik was personally involved in the denial of adequate

medical treatment or that Guzik implemented a policy which

resulted in the denial of adequate medical treatment. See

Thompkins v. Belt,

(5th Cir. 1987).

Accordingly, the portion of the district court’s final judgment

dismissing Ramirez’s claim against Warden Guzik as frivolous is

AFFIRMED. Because Ramirez has not challenged it on appeal, we

also AFFIRM the portion of the district court’s final judgment

dismissing any potential claims against the Federal Bureau of

Prison without prejudice to his right to seek relief under the

Federal Tort Claims Act. See Yohey v. Collins,

(5th Cir. 1993)(stating that issues not briefed on appeal

are abandoned).

We nevertheless conclude that the district court abused its

discretion in dismissing Ramirez’s complaint without giving him

an opportunity to amend. See Parker v. Fort Worth Police Dep’t,

(5th Cir. 1993)(concluding, under similar

circumstances, that the district court abused its discretion in

dismissing plaintiff’s complaint under former

(d)

without first granting plaintiff leave to amend); Dayse v.

Schuldt,

(5th Cir. 1990)(stating that, when a

pro se plaintiff raises a constitutional claim but inadvertently

sues the wrong party, he should be given leave to amend to sue No. 00-10903 -3-

the appropriate party or parties). Accordingly, we VACATE the

district court’s final judgment in part and REMAND the case for

further proceedings consistent with this opinion.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.