* 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should not be published and is not precedent except under the limited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. 07-20875

Conference Calendar

JOHN ADI

Plaintiff-Appellant

v.

RON KNOT, Investigator with Harris County District Attorneys Office;

RAPHAEL GONZALES, Investigator with Harris County District Attorneys

Office; LESTER BLIZZARD, Assistant District Attorney

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CV-3142

Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

John Adi, federal prisoner # 24680-079, appeals the dismissal as frivolous

of his 42 U.S.C. § 1983 complaint. He alleged that following his arrest on a state

felony charge, the defendants violated his rights under Article 36 of the Vienna

Convention (the Convention) because they failed to advise him or insure that he

was aware of his right to consulate notification and consultation.

United States Court of Appeals

Fifth Circuit

F I L E D

August 19, 2008

Charles R. Fulbruge III

Clerk
No. 07-20875

2

The district court sua sponte determined that Adi’s § 1983 complaint was

barred by the statute of limitations. Contrary to Adi’s contentions, the district

court was not required to give him an opportunity to respond to the time-bar

issue prior to dismissing his complaint. See 28 U.S.C. § 1915(e)(2)(B)(i); Jackson

v. City of Beaumont Police Dep’t, 958 F.2d 616, 619 (5th Cir. 1992).

Adi argues that he first became aware that he suffered an injury and that

the defendants violated his rights under Article 36 ofthe Convention on June 12,

2007, after reading the decision in Jogi v. Voges, 480 F.3d 822, 834-35 (7th Cir.

2007), which concluded that a foreign national could pursue a cause of action

under § 1983 for a violation of his Article 36 rights. Adi’s argument is without

merit. Because Adi knew at the time of his arrest and conviction that the

defendants failed to advise him of his rights under the Convention, he was aware

of the injury which is the basis of his action. The fact that Adi did not know that

he had a “legal cause of action” under § 1983 is not relevant in determining the

date on which the limitations period began to run. See Piotrowski v. City of

Houston, 51 F.3d 512, 516 (5th Cir. 1995). Because Adi was aware of the injury

at the time of his arrest and conviction, the limitations period ended, at the

latest, in April 2001, two years after Adi’s criminal conviction. Adi’s § 1983

complaint filed in 2007 comes too late.

Adi contends that the district court erred in denying his motion to amend

his complaint to allege that he first became aware that the defendants violated

his rights under Article 36 on June 12, 2007, after reading the decision in Jogi.

As discussed above, the Jogi decision is of no help to Adi. Thus, any amendment

would have been futile, and the district court did not abuse its discretion in

denying Adi’s motion. See Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th

Cir. 2003). The judgment of the district court is affirmed.

We note that the district court’s dismissal of Adi’s complaint as frivolous

counts as a strike under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,

385-87 (5th Cir. 1996). Adi has already accumulated two prior strikes. See Adi
No. 07-20875

3

v. Management & Training Corp., No. 07-11139, 2008 WL 2468474 (5th Cir.

June 19, 2008) (unpublished). Further, we are imposing another strike in Adi

v. United States Marshals Serv., No. 07-20814, decided today. As Adi has now

accumulated at least three strikes, he is barred from proceeding in forma

pauperis in any civil action or appeal while he “is incarcerated or detained in any

facility unless he is under imminent danger of serious physical injury.” 

§ 1915(g). Adi should review any pending matters to insure that none is

frivolous. 

AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED.