* 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this opinion should not be published and is not precedent except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. 04-20115

Summary Calendar

 

TIMOTHY HUGH QUEEN, Individually, and on behalf of Sabrina Nicole

Goeddertz, a minor child,

Plaintiff-Appellant,

versus

W. B. PURSER, Houston Police Officer Employee No. 099826 in His

Individual Capacity,

Defendant-Appellee.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-03-CV-5288

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

Before EMILIO M. GARZA, DeMOSS, CLEMENT, Circuit Judges.

PER CURIAM:*

Timothy Hugh Queen, Texas inmate # 526808, appeals from the

dismissal of his civil rights action. Queen claimed that Houston

police officer W. B. Purser illegally stopped him, illegally seized

contraband from his clothing, and falsely arrested him. Queen’s

complaint also asserted a claim for loss of familial association on

behalf of his minor daughter, Sabrina Nicole Goeddertz, based on

Queen’s arrest and subsequent incarceration following Queen’s

conviction for possession of controlled substances. The district

United States Court of Appeals

Fifth Circuit

F I L E D

August 24, 2004

Charles R. Fulbruge III

Clerk
2

court dismissed the complaint as frivolous pursuant to Heck v.

Humphrey, 512 U.S. 477 (1994), because Queen’s conviction had not

been invalidated and because a favorable judgment on Queen’s claims

that the search and arrest had been unlawful would imply the

invalidity of his conviction. 

Queen argues that the “favorable termination” requirement of

Heck does not apply because he had completed his sentence before he

filed his complaint and thus could not challenge his conviction by

means of a federal habeas petition. Queen’s argument is foreclosed

by Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000), in which

this court determined that it was bound to apply Heck’s “favorable

termination” requirement to custodial as well as released inmates.

One panel of this court is bound by the precedent of previous

panels absent an intervening Supreme Court case overruling that

prior precedent. See Martin v. Medtronic, Inc., 254 F.3d 573, 577

(5th Cir. 2001). 

Queen contends that the district court abused its discretion

in dismissing his unlawful arrest claim under Heck because the

claim does not necessarily implicate the validity of his

conviction. In order to prevail on his claim, Queen must show that

Purser lacked probable cause to arrest him. See Wells v. Bonner,

45 F.3d 90, 95 (5th Cir. 1995). Queen’s false arrest claim

necessarily challenges whether the evidence seized by Purser, which

led to his conviction, supplied probable cause for his arrest.

Queen’s false arrest claim is therefore barred by Heck. See
3

Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995).

Queen argues that the district court abused its discretion in

dismissing as frivolous the claim of his minor daughter. Because

his daughter’s claim is derivative of his constitutional claims,

and because Queen’s claims are barred, the district court did not

abuse its discretion in dismissing the claim asserted on behalf of

Queen’s daughter. See Benavides v. County of Wilson, 955 F.2d 968,

975 (5th Cir. 1992). 

Queen’s remaining argument is that the district court erred in

dismissing his action before the defendant answered the complaint.

The district court’s dismissal of the action was in accord with 28

U.S.C. § 1915, which requires dismissal “at any time” if the court

determined that the action is frivolous. See 28 U.S.C.

§ 1915(e)(2)(B)(i). 

The district court’s dismissal of Queen’s action as frivolous

counts as a “strike” under 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Queen is hereby

CAUTIONED that if he accumulates three “strikes,” he will not be

able to proceed in forma pauperis in any civil action or appeal

filed while he is incarcerated or detained in any facility unless

he is under imminent danger of serious physical injury. See

28 U.S.C. § 1915(g). 

AFFIRMED; SANCTION WARNING ISSUED.