Propes v. Wolf

Filing 920060502

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
May 2, 2006 Charles R. Fulbruge III Clerk

No. 04-41354 Summary Calendar

JOHNNIE R. PROPES, Plaintiff-Appellant, versus DEBORA WOLF, Defendant-Appellee. -------------------Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:03-CV-273 -------------------Before SMITH, GARZA, and PRADO, Circuit Judges. PER CURIAM:* Johnnie R. Propes, Texas state prisoner number 1178904, appeals the district court's dismissal with prejudice of his pro se, in forma pauperis, 42 U.S.C. § 1983 civil rights complaint for failure to state a claim. Liberally construed, Propes

reiterates his claim that, on June 23, 2003, in the 366th District Court, Officer Debora Wolf, a Plano, Texas, police officer, knowingly falsely testified at a trial that in 1999 he threatened her with a gun.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41354 -2A district court shall dismiss an IFP complaint at any time if it determines that the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

Such a dismissal is reviewed de novo under the standard of FED. R. CIV. P. 12(b)(6). Cir. 2003). Police officers are absolutely immune from liability for their allegedly perjurious testimony. Enlow v. Tishomingo As such, Hart v. Hairston, 343 F.3d 762, 763-64 (5th

County, Miss., 962 F.2d 501, 511 (5th Cir. 1992). Propes's claims against Officer Wolf are barred.

The district court denied Propes's motion to supplement his complaint with claims that challenged an unspecified conviction and sentence. Because Propes did not contest the district

court's ruling on appeal, he arguably has waived the right to challenge the denial of his motion to amend. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). See Yohey v. Assuming that

Propes's reassertion on appeal of the claims raised in his motion to supplement constitutes an implicit challenge to the denial of his motion to supplement, the claims still fail as they are not cognizable under § 1983. See Heck v. Humphrey, 512 U.S. 477, 486 (1994). Accordingly, Propes's appeal is frivolous and therefore See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

is dismissed.

1983); 5TH CIR. R. 42.2. In Propes v. Dretke, No. 04-50822 (5th Cir. Apr. 20, 2005), we imposed the 28 U.S.C. § 1915(g) bar against Propes. We warn

No. 04-41354 -3Propes that further filing of frivolous complaints or pleadings may result in additional sanctions against him. APPEAL DISMISSED; SANCTION WARNING ISSUED.