Simon v. Dixon ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 25, 2005
Charles R. Fulbruge III
Clerk
No. 04-30918
Summary Calendar
JOHN GENE SIMON, SR.,
Plaintiff-Appellant,
versus
DON RAY DIXON; CANDY LEWIS; GARY SENSAT,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:04-CV-782-JTT
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
John Gene Simon, Sr., Louisiana prisoner #246547, appeals
the district court’s dismissal of his 28 U.S.C. § 1983 action as
frivolous and for failure to state a claim upon which relief may
be granted. Simon argues that the district court erred by
dismissing his complaint without giving him the opportunity to
amend it. He further asserts that he stated a viable Fourth
Amendment claim for the taking of DNA samples from him, a viable
*
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this opinion should not be published and is not precedent except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. 04-30918
-2-
Fourth Amendment claim for false imprisonment, and a viable
Fourteenth Amendment claim for malicious prosecution.
Simon’s complaint was thorough and gave a detailed
explanation of the claims he was raising. Furthermore, Simon
could have attempted to amend his complaint between the issuance
of the magistrate judge’s report and recommendation and the
district court’s dismissal. The only specific amendment that
Simon states that he wishes to make would be futile.
Accordingly, the district court did not err by dismissing Simon’s
complaint without expressly giving him the opportunity to amend
it. See Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999).
The district court did not err by dismissing Simon’s Fourth
Amendment claim for the taking of DNA samples from him. See
Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003). Even
disregarding the only statement of Dee Simon that was arguably
protected by the marital communications privilege, the evidence
presented at the preliminary hearing established that there was
probable cause to arrest and detain Simon on the first-degree
murder charge that was later dismissed. See Sorenson v. Ferrie,
134 F.3d 325, 328 (5th Cir. 1998); United States v. Martin, 615
F.2d 318, 323-27 (5th Cir. 1980). Accordingly, the district
court did not err by dismissing Simon’s Fourth Amendment false
imprisonment claim. See Brown v. Lyford, 243 F.3d 185, 189 (5th
Cir. 2001). As the remainder of his claims were not viable, the
district court did not err by dismissing Simon’s Fourteenth
No. 04-30918
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Amendment claim for malicious prosecution. See Castellano v.
Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) (en banc) (malicious
prosecution, standing alone, is not a constitutional violation).
Simon’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Accordingly, it is DISMISSED. See 5TH CIR. R. 42.2. Both the
district court’s dismissal of the complaint and our dismissal of
the instant appeal count as “strikes” for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). The dismissal of Simon’s complaint as frivolous and for
failure to state a claim upon which relief may be granted in the
companion case of Simon v. Lundy, No. 2:04-CV-1094 (W.D. Tex.
Oct. 15, 2004) (unpublished), counts as an additional strike.
See 28 U.S.C. § 1915(g). Simon has now accumulated three strikes
under 28 U.S.C. § 1915(g), and he may not 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 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR
IMPOSED