Simmonds v. Abbott

Filing 920060302

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 2, 2006 Charles R. Fulbruge III Clerk No. 04-51075 Summary Calendar

GORDON SIMMONDS, Plaintiff-Appellant, versus GREG ABBOTT, Texas Attorney General, Defendant-Appellee. -------------------Appeal from the United States District Court for the Western District of Texas USDC No. 1:04-CV-166 -------------------Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges PER CURIAM:* Gordon Simmonds, Texas prisoner # 932489, filed a complaint in the district court against Greg Abbott, Attorney General of Texas, complaining that Texas Government Code § 498.045, pertaining to forfeiture of good conduct time for filing frivolous and malicious lawsuits, is an unconstitutional bill of attainder. The district

court determined that Simmonds lack standing and dismissed the complaint without prejudice for lack of jurisdiction. Simmonds has appealed.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-51075 - 2 The judicial power of the United States courts under Article III, § 2, of the Constitution extends only to cases and

controversies "of the sort traditionally amenable to, and resolved by, the judicial process." Steel Co. v. Citizens for a Better "Standing to sue is part of

Environment, 523 U.S. 83, 102 (1998).

the common understanding of what it takes to make a justiciable case." Id. To have standing, a plaintiff must suffer an injury in

fact, that is, "a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical." 103. Id. at

"Allegations of possible future injury do not satisfy the A threatened injury must be `certainly Whitmore v. Arkansas,

requirements of Art. III.

impending' to constitute injury in fact."

495 U.S. 149, 159 (1990) (quotation marks omitted). Under the statute at issue, an inmate shall forfeit good conduct time if more than one lawsuit or habeas application is dismissed as frivolous or malicious. (Vernon 2004). TEX. GOV'T CODE ANN. § 498.0045

In his complaint, Simmonds contended only that the

statute is an unlawful bill of attainder and that the defendant attorney general should be enjoined from enforcing the statute. In his motion to amend his complaint, Simmonds contended that he already has one prior lawsuit that was dismissed as frivolous. Simmonds contends that he did not file a lawsuit and decided not to appeal the dismissal of another lawsuit because he was concerned that the lawsuit and the appeal would be regarded as frivolous and that he would forfeit good conduct time as a result.

No. 04-51075 - 3 The acts necessary to make the complained of injury happen to Simmonds are at least partly within his own control. See Luhan v. In that

Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992).

circumstance, Simmonds must show that the threatened injury has a "high degree of immediacy." showing. See id. Simmonds has not made such a

Because amendment of the complaint would have been

futile, Simmonds has not shown that the district court abused its discretion in denying his motion to amend. See Lowrey v. Texas A&M The judgment is

Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997). AFFIRMED.