IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-40451

Summary Calendar

 

JEREMY HAYES MUNDINE,

Plaintiff-Appellant,

v.

GARY L. JOHNSON, Director; JERRY PATTERSON, Deputy Director of

Operations TDCJ-ID; WILLIAM MCCRAY, Deputy Director of 

Administrative Services; S.O. WOODS, Chief of Classification;

BARRETT KEITH BROWN, Attorney,

Defendants-Appellees.

* * * * * * * * * * * * * * * * * * * *

Consolidated with

____________________

No. 00-40452

Summary Calendar

____________________

JEREMY HAYES MUNDINE,

Plaintiff-Appellant,

v.

BARRETT KEITH BROWN; TODD MCCRAY; DON JARVIS; GRAYSTON COUNTY,

Defendants-Appellees.

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

Appeals from the United States District Court

for the Eastern District of Texas

USDC Nos. 4:99-CV-303, 4:00-CV-19

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

December 8, 2000
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No. 00-40452

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that this opinion should not be published and is not precedent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

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

In these consolidated cases, Jeremy Mundine (Texas prisoner

#627222) appeals the district court’s dismissals of two civil

rights actions as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). 

Because the district court dismissed both of Mundine’s civil

rights actions as frivolous under § 1915(e)(2)(B)(i), we review

only for an abuse of discretion. See Siglar v. Hightower, 112

F.3d 191, 193 (5th Cir. 1997). Mundine has also filed several

motions, including a motion to present demonstrative evidence, a

motion for injunctive relief, and a motion for summary judgment. 

These motions are DENIED, as are all other outstanding motions.

Mundine’s complaint in case number 00-40451 sought damages

from various officials of the Texas Department of Criminal

Justice-Institutional Division and Barrett Keith Brown, his

retained defense attorney in Texas criminal proceedings, because

Mundine’s eight-year Texas sentence was not being credited with

the seven months that he spent as a pretrial detainee. In

dismissing Mundine’s suit as frivolous, the district court,

relying on Heck v. Humphrey, 512 U.S. 477 (1994), concluded that

Mundine’s claim for damages was not cognizable in a 42 U.S.C.

§ 1983 action because he had not shown that his sentence had been

overturned or invalidated. Mundine has not satisfied Heck’s
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favorable-termination requirement and, consequently, has not

shown that the district court abused its discretion in dismissing

the suit in 00-40451 as frivolous. See Randell v. Johnson, 227

F.3d 300 (5th Cir. Sept. 26, 2000, No. 99-11092), 2000 WL 1280459

at *1-*2.

Mundine’s complaint in case number 00-40452 sought damages

from Brown, his retained defense attorney, because of purported

deficiencies in Brown’s representation during the Texas criminal

proceedings. The district court concluded that Mundine’s suit

was foreclosed by Polk County v. Dodson, 454 U.S. 312, 325

(1981), because Brown was not acting under the color of state law

for the purposes of § 1983 liability. The district court’s

reliance on Dodson was appropriate. Although Mundine attempts to

distinguish Dodson by pointing out that Brown was eventually

appointed to represent him, his effort is unavailing because

Dodson itself involved a public defender. See 454 U.S. at 325.

Mundine also points to allegations made in his “Supplemental

Amended Complaint” in an effort to show that Brown conspired with

state officials, namely the county attorney and the assistant

county attorney. Mundine’s amended complaint, however, was filed

more than one month after entry of the district court’s final

judgment, which dismissed his action with prejudice. Thus,

Mundine’s right to amend his complaint had already terminated,

and the district court was under no obligation to consider the

allegations made in his amended complaint. See Whitaker v. City

of Houston, Tex., 963 F.2d 831, 837 (5th Cir. 1992). Because the

allegations in Mundine’s initial complaint were squarely
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foreclosed by Dodson, the district court did not abuse its

discretion in dismissing the instant suit as frivolous. See

Siglar, 112 F.3d at 193.

Mundine’s appeal is likewise frivolous and is therefore

DISMISSED. See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983); 5TH CIR. R. 42.2. The dismissals of his two suits in the

district court each count as a strike for the purposes of 28

U.S.C. § 1915(g), as does the dismissal of this appeal. See

Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). We

caution Mundine that, by accumulating three strikes under

§ 1915(g), he will not be able to proceed IFP 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 § 1915(g).

MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) WARNING ISSUED.