Adi v. Knot

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2008
No. 07-20875
Conference Calendar Charles R. Fulbruge III
Clerk
JOHN ADI
Plaintiff-Appellant
v.
RON KNOT, Investigator with Harris County District Attorneys Office;
RAPHAEL GONZALES, Investigator with Harris County District Attorneys
Office; LESTER BLIZZARD, Assistant District Attorney
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CV-3142
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
John Adi, federal prisoner # 24680-079, appeals the dismissal as frivolous
of his 42 U.S.C. § 1983 complaint. He alleged that following his arrest on a state
felony charge, the defendants violated his rights under Article 36 of the Vienna
Convention (the Convention) because they failed to advise him or insure that he
was aware of his right to consulate notification and consultation.
*
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should not be published and is not precedent except under the limited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. 07-20875
The district court sua sponte determined that Adi’s § 1983 complaint was
barred by the statute of limitations. Contrary to Adi’s contentions, the district
court was not required to give him an opportunity to respond to the time-bar
issue prior to dismissing his complaint. See 28 U.S.C. § 1915(e)(2)(B)(i); Jackson
v. City of Beaumont Police Dep’t, 958 F.2d 616, 619 (5th Cir. 1992).
Adi argues that he first became aware that he suffered an injury and that
the defendants violated his rights under Article 36 of the Convention on June 12,
2007, after reading the decision in Jogi v. Voges, 480 F.3d 822, 834-35 (7th Cir.
2007), which concluded that a foreign national could pursue a cause of action
under § 1983 for a violation of his Article 36 rights. Adi’s argument is without
merit. Because Adi knew at the time of his arrest and conviction that the
defendants failed to advise him of his rights under the Convention, he was aware
of the injury which is the basis of his action. The fact that Adi did not know that
he had a “legal cause of action” under § 1983 is not relevant in determining the
date on which the limitations period began to run. See Piotrowski v. City of
Houston, 51 F.3d 512, 516 (5th Cir. 1995). Because Adi was aware of the injury
at the time of his arrest and conviction, the limitations period ended, at the
latest, in April 2001, two years after Adi’s criminal conviction. Adi’s § 1983
complaint filed in 2007 comes too late.
Adi contends that the district court erred in denying his motion to amend
his complaint to allege that he first became aware that the defendants violated
his rights under Article 36 on June 12, 2007, after reading the decision in Jogi.
As discussed above, the Jogi decision is of no help to Adi. Thus, any amendment
would have been futile, and the district court did not abuse its discretion in
denying Adi’s motion. See Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th
Cir. 2003). The judgment of the district court is affirmed.
We note that the district court’s dismissal of Adi’s complaint as frivolous
counts as a strike under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
385-87 (5th Cir. 1996). Adi has already accumulated two prior strikes. See Adi
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No. 07-20875
v. Management & Training Corp., No. 07-11139, 2008 WL 2468474 (5th Cir.
June 19, 2008) (unpublished). Further, we are imposing another strike in Adi
v. United States Marshals Serv., No. 07-20814, decided today. As Adi has now
accumulated at least three strikes, he is barred from proceeding in forma
pauperis in any civil action or appeal while he “is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury.”
§ 1915(g). Adi should review any pending matters to insure that none is
frivolous.
AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED.
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