IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50003

Summary Calendar

ROBERT ALLEN CLARK, JR.,

Plaintiff-Appellant

versus 

CITY OF SAN ANTONIO; CATHERINE E. CAGNON, Police Officer of the San 

Antonio Police Department; SAN ANTONIO POLICE DEPARTMENT,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:16-CV-797

Before SMITH, WIENER, and HAYNES, Circuit Judges.

PER CURIAM:*

Robert Allen Clark, Jr., moves to proceed in forma pauperis (IFP) in this 

appeal from the district court’s dismissal of his 42 U.S.C. § 1983 complaint for 

failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). Clark’s 

complaint arose from his arrest and prosecution for violating San Antonio’s 

vending ordinance. By moving to proceed IFP in this court, Clark challenges

 

* 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 13, 2018

Lyle W. Cayce

Clerk

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No. 17-50003

2

the district court’s certification that his appeal is not taken in good faith. See

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

Clark has not raised a legal issue arguable on the merits. The district 

court based its dismissal in part on the rule that a plaintiff in a civil rights 

action may not recover damages for an “allegedly unconstitutional conviction 

or imprisonment, or for other harm caused by actions whose unlawfulness 

would render a conviction or sentence invalid,” unless he proves “that the 

conviction or sentence has been reversed on direct appeal, expunged by 

executive order, declared invalid by a state tribunal authorized to make such 

determination, or called into question by a federal court’s issuance of a writ of 

habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). A civil rights 

claim that is barred by this rule is legally frivolous. Hamilton v. Lyons, 74 F.3d 

99, 102-03 (5th Cir. 1996). In his motion, Clark asserts that Heck does not 

apply because he is not a prisoner and because his conviction was void. He 

contends that his conviction was void because the state trial court judge was 

under a “motion for recusal.” Clark does not cite any legal authority suggesting 

that Heck only applies to prisoners and that a motion for recusal voids a 

conviction.

In addition, Clark argues that the district court judge and magistrate 

judge should have recused themselves due to bias. However, Clark’s 

conclusory arguments for recusal fail to show that the magistrate judge and 

district court judge had actual personal biases or were prejudiced against him. 

See 28 U.S.C. §§ 144, 455(a), (b)(1); Liteky v. United States, 510 U.S. 540, 555-

56 (1994). Further, Clark claims that the court prevented him from conducting 

discovery and argues that the district court erred by not allowing him to amend 

his complaint. While a district court generally must not dismiss a pro se 

litigant’s complaint for failure to state a claim unless it has given the litigant 

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an opportunity to develop the facts and amend his complaint to remedy the 

deficiencies, Clark fails to demonstrate that the district court abused its 

discretion by denying his motion to amend his complaint and request to 

conduct discovery. See Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994); Avatar 

Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 321 (5th Cir. 1991); cf. 

Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993).

Thus, Clark fails to raise any legal issues arguable on their merits. 

Accordingly, his motion for leave to proceed IFP is denied, and his appeal is

dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

IFP MOTION DENIED; APPEAL DISMISSED.

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