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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

March 2, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

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. 
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

Environment, 523 U.S. 83, 102 (1998). “Standing to sue is part of

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.” Id. at

103. “Allegations of possible future injury do not satisfy the

requirements of Art. III. A threatened injury must be ‘certainly

impending’ to constitute injury in fact.” Whitmore v. Arkansas,

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. TEX. GOV’T CODE ANN. § 498.0045

(Vernon 2004). 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.

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

circumstance, Simmonds must show that the threatened injury has a

“high degree of immediacy.” See id. Simmonds has not made such a

showing. 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

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

AFFIRMED.