Josey v. Texas Department of Public Safety ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 8, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50770
Summary Calendar
JOHN T. JOSEY,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF PUBLIC SAFETY; JIMMY R. MORGAN;
NIX, Trooper; KELLI WILLIAMS, Deputy; MILAM COUNTY DISTRICT
ATTORNEY’S OFFICE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-03-CV-39
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Pretrial detainee John T. Josey appeals the dismissal for
failure to state a claim of his 42 U.S.C. § 1983 suit under 28
U.S.C. § 1915A. The district court determined that Josey’s
allegations were barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Josey argues that no probable cause existed for his arrest for
driving while intoxicated and that the exclusionary rule was
*
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that this opinion should not be published and is not precedent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. 03-50770
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violated when he was not read his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). Josey does not argue that the Heck
bar does not apply. Consequently, Josey has waived that
argument. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.
1994).
Josey asserts that he was only required to give fair notice
of his claims in his complaint, but he also concedes that the
district court was required to screen his suit. To the extent
that Josey argues that he was entitled to notice before the
dismissal of his claims, his argument fails. See Graves v.
Hampton, 1 F.3d 315, 318 n.12 (5th Cir. 1993), abrogated on other
grounds, Arvie v. Broussard, 42 F.3d 249, 250 (5th Cir. 1994).
Josey also argues that he was denied his right to a speedy
trial. The district court implicitly denied Josey the
opportunity to amend his action by not expressly addressing and
resolving this issue that Josey raised for the first time in his
objections. However, by raising his speedy-trial argument, Josey
is contesting his continued confinement. Because Josey’s
continued confinement has not been remedied by any of the
procedures listed in Heck, his speedy-trial claim also is not
cognizable under 42 U.S.C. § 1983. See Heck, 512 U.S. at 486-87.
Consequently, the district court did not abuse its discretion by
refusing to allow such an amendment. See United States v.
Riascos, 76 F.3d 93, 94 (5th Cir. 1996).
No. 03-50770
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The judgment of the district court is AFFIRMED. Josey’s
motion to strike from the record any “rulings, judgments,
and[/]or orders” entered by the district court after his notice
of appeal was filed and motion entitled “Violation of 5th Cir.
R. 46.3 by attorney Carlos D. Lopez” are DENIED.