* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-50786

Summary Calendar

 

JOSE MELENDREZ, JR.,

Plaintiff-Appellant,

versus

FRANCIS E. SEIB, Drug Enforcement Administration, head DEA Agent

in charge of Eagle Pass, Texas, in his official capacity; MOSES

PENA, Drug Enforcement Administration, DEA Agent in Eagle Pass,

Texas, in his official capacity; LARRY LEON, Drug Enforcement

Administration, former DEA Agent in Eagle Pass, Texas, not in San

Antonio, Texas, in his official capacity; TONY QUINTANILLA,

Former County Investigator of Zapata County, now a U.S. Border

Patrol Agent in Fort Hancock, Texas, in his official capacity;

ARNOLDO RAMOS, Sergeant/Investigative Department of Public Safety

in Del Rio, Texas, in his official capacity; UNITED STATES OF

AMERICA,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. DR-01-CV-1

--------------------

February 20, 2002

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

Jose Melendrez, Jr., federal prisoner # 06688-059, appeals

the dismissal of his claims brought against state and federal

law-enforcement defendants under the Federal Tort Claims Act

(“FTCA”), 42 U.S.C. § 1983, and Bivens v. Six Unknown Named
No. 01-50786

-2-

Agents, 403 U.S. 388 (1971). Melendrez pleaded guilty to a drugtrafficking conspiracy charge and was sentenced to prison in

1996. He now seeks damages under the FTCA on grounds that the

defendants committed torts of abuse of process and negligent

misrepresentation by recommending his prosecution on the

conspiracy charges while he was a confidential informant. 

The district court correctly substituted the United States

for the individual federal defendants with respect to FTCA

claims. 28 U.S.C. § 2679(d); Rodriguez v. Sarabyn, 129 F.3d 760,

764 (5th Cir. 1997). The district court also correctly dismissed

the FTCA claims as time barred. Melendrez failed to show that he

had provided the defendants with adequate notice of his claim

within two years of its accrual as required by the FTCA. 28

U.S.C. § 2401(b); Montoya v. United States, 841 F.2d 102, 104

(5th Cir. 1988). Melendrez also failed to show any trickery or

inducement by the defendants that caused him to delay filing his

FTCA claim, and he therefore is not entitled to equitable tolling

of the limitation period. See Perez v. United States, 167 F.3d

913, 914 (5th Cir. 1999).

The district court correctly determined that Melendrez’s

§ 1983 claims were barred by Heck v. Humphrey, 512 U.S. 477

(1994). Melendrez’s damages all arise from his alleged wrongful

prosecution and imprisonment, so that his present action

necessarily implies that his conviction is invalid. Wells v.

Bonner, 45 F.3d 90, 94 (5th Cir. 1995). Accordingly, Melendrez

was required to show that his conviction had been set aside or

overturned in order for his civil rights action to accrue. 
No. 01-50786

-3-

Wells, 45 F.3d at 94. The district court also correctly applied

Heck to any Bivens claims that might remain against the federal

defendants. Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). 

The Bivens and § 1983 claims were correctly dismissed. Their

dismissal is “with prejudice to their being asserted again until

the Heck conditions are met.” Johnson v. McElveen, 101 F.3d 423,

424 (5th Cir. 1996).

We decline to consider Melendrez’s arguments that the

district judge should have recused himself, because Melendrez did

not properly seek recusal in the district court. See United

States v. Sanford, 157 F.3d 987, 988-89 (5th Cir. 1998). The

district court’s judgment is AFFIRMED.

Melendrez has also filed a motion to supplement the record. 

However, the items he offers in supplementation are already in

the record. His motion to supplement is DENIED.

In his brief, appellee Tony Quintanilla has asked for an

award of costs for a frivolous appeal. Because he did not file a

separate motion as required by Fed. R. App. P. 38, we refuse to

consider the request.

DISMISSAL AFFIRMED; MOTION DENIED