Frederick Opiyo v. Timothy Musgrave , 574 F. App'x 491 ( 2014 )

Case: 13-11259 Document: 00512687159 Page: 1 Date Filed: 07/03/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-11259 FILED
Summary Calendar July 3, 2014
Lyle W. Cayce
Clerk
FREDERICK O. OPIYO,
Plaintiff-Appellant
v.
TIMOTHY MUSGRAVE, Supervising United States Probation Officer; MONICA
VILLEGAS, United States Probation Officer; MONA HERNANDEZ, United States
Postal Inspector; UNKNOWN AGENT, United States Postal Inspector; TWO
UNKNOWN AGENTS, United States Marshals,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-cv-582
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Frederick O. Opiyo, federal prisoner # 39194-039, appeals the district
court’s dismissal, under 28 U.S.C. § 1915A(b)(1), of his civil rights action
brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). Opiyo challenged the actions of the defendants
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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in relation to a search and seizure of property, Opiyo’s arrest, his guilty-plea
conviction of uttering and possessing a forged security, and the revocation of
his supervised release.
Opiyo contends that the district court erred by dismissing his complaint.
Specifically, he asserts the district court wrongly concluded that all of Opiyo’s
claims implicated the validity of his conviction and revocation, and that Opiyo
failed to show that either his conviction or the revocation had been reversed or
expunged as required by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Although Opiyo is correct that a claim of “unlawful arrest, standing alone, does
not necessarily implicate the validity of a criminal prosecution following the
arrest;” Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995) (emphasis in
original); a judgment in favor of Opiyo here, concluding that his arrest was
unconstitutional, would imply the invalidity of both the conviction and the
revocation which resulted from the offense for which Opiyo was arrested. See
Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995).
Further, although Opiyo asserts that his challenges to the search and
seizure would not suggest that his conviction and the revocation were invalid,
he states that the remedy for the constitutional violation alleged would be
suppression of the resulting evidence. He alleges no facts indicating that,
contrary to the district court’s conclusion, suppression of that seized evidence
would not lead to the conclusion that the conviction was invalid, and has thus
shown no error in the district court’s conclusion that Heck barred this claim as
well. See Heck, 512 U.S. at 486-87; Harris v. Hegmann, 198 F.3d 153, 156 (5th
Cir. 1999). Opiyo’s conclusory assertions that his claims of failure to disclose
exculpatory evidence, retaliatory prosecution, civil conspiracy, supervisory
liability, unlawful destruction of property, and malicious prosecution of the
supervised release revocation did not call into question the validity of his
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conviction and the revocation are insufficient to show error. See Hebert v.
United States, 438 F.3d 483, 488 (5th Cir. 2006).
Opiyo argues that the district court should have stayed the proceedings
pending the outcome of his motions for certificates of appealability in this
court. In light of the resolution of those motions, this claim is moot. Even were
the claim not moot, however, Opiyo’s discussion of the Federal Rules of
Appellate Procedure and case law regarding injunctions is not relevant to his
claim and his reliance on Lewis v. Beddingfield, 20 F.3d 123 (5th Cir. 1994), is
misplaced. Lewis analyzed federal court interference with pending state
criminal proceedings, as barred by the abstention doctrine of Younger v.
Harris, 401 U.S. 37 (1971). 20 F.3d at 125. This action, based on Opiyo’s
federal conviction and revocation, does not raise such concerns and Opiyo has
failed to show error in the absence of a stay.
Opiyo additionally challenges the district court’s denial of his motion to
recuse the district judge and magistrate judge, arguing that the judges’ rulings
against him in his criminal and post-conviction matters reveal their bias
against him. These rulings do not exhibit the high level of animosity which
would render a fair judgment impossible. See United States v. Mizell, 88 F.3d
288, 299 (5th Cir. 1996); Liteky v. United States, 510 U.S. 540, 555 (1994). The
district court acted within its discretion in denying the motion to recuse.
Mizell, 88 F.3d at 300. The same failure to demonstrate bias is fatal to
Opiyo’s challenge to the transfer of venue in this matter. The district court
acted within its discretion in transferring the matter, in the interests of justice,
to a division in which the action may have been brought. See 28 U.S.C.
§ 1404(a); Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 631 (5th Cir.
2008).
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The judgment of the district court is affirmed. Its dismissal of Opiyo’s
complaint for failure to state a claim counts as a strike for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Opiyo 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 § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.
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