Summary
finding no abuse discretion in the district court's determination that a complaint duplicative of a prior § 1983 action was malicious
Summary of this case from Terry v. WorkersOpinion
No. 15-10177
05-03-2016
CARLOS WAYNE TOOMBS, also known as Carlos Wayne Durham, Plaintiff-Appellant v. DIANNA MASSINGILL, Assistant District Attorney; TIM CANTRELL, Trial Counsel; RICKY DEARMAN, Amarillo Police Officer; SERGEANT JIM MCKENNY, Amarillo Police Officer, Defendants-Appellees
Summary Calendar Appeal from the United States District Court for the Northern District of Texas
USDC No. 2:14-CV-262 Before JOLLY, DENNIS, and PRADO, Circuit Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. --------
Carlos Wayne Toombs, Texas prisoner # 1109593, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint as frivolous and malicious. According to Toombs, the district court erred in determining that the claims in his complaint were barred under Heck v. Humphrey, 512 U.S. 477 (1994), and thus frivolous. We find no abuse of discretion in the determination because the complaint seeks monetary damages from defense counsel, the prosecutor, and two police officers "for the unjustified deprivation of [Toombs's] life, liberty and property" but does not allege that his conviction or sentence has been reversed, expunged, set aside, or otherwise undermined. See Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir. 1994). Nor do we find an abuse of discretion in the district court's determination that the complaint, which was duplicative of a prior § 1983 suit, was malicious. See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). Further, Toombs fails to assert or demonstrate any error in the district court's rejection of his DNA testing claim, which he raised in a postjudgment motion. See Skinner v. Switzer, 562 U.S. 521, 525 (2011); Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009).
The appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR. R. 42.2. The motions for an evidentiary hearing and to compel the production of evidence are DENIED. We previously warned Toombs that he had two strikes under 28 U.S.C. § 1915(g). The district court's dismissal of his complaint in this case, as well as our dismissal of this appeal, count as additional strikes. See Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Because Toombs has accumulated more than three strikes, he is BARRED from proceeding IFP in any civil action while he is incarcerated unless he is under imminent danger of serious physical injury. See § 1915(g).