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Propes v. Wolf, 04-41354 (2006)

Court: Court of Appeals for the Fifth Circuit Number: 04-41354 Visitors: 41
Filed: May 02, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 2, 2006 Charles R. Fulbruge III Clerk No. 04-41354 Summary Calendar JOHNNIE R. PROPES, Plaintiff-Appellant, versus DEBORA WOLF, Defendant-Appellee. - Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:03-CV-273 - Before SMITH, GARZA, and PRADO, Circuit Judges. PER CURIAM:* Johnnie R. Propes, Texas state prisoner number 1178904, appeals the
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 2, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41354
                         Summary Calendar



JOHNNIE R. PROPES,

                                    Plaintiff-Appellant,

versus

DEBORA WOLF,
                                    Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 4:03-CV-273
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Johnnie R. Propes, Texas state prisoner number 1178904,

appeals the district court’s dismissal with prejudice of his pro

se, in forma pauperis, 42 U.S.C. § 1983 civil rights complaint

for failure to state a claim.   Liberally construed, Propes

reiterates his claim that, on June 23, 2003, in the 366th

District Court, Officer Debora Wolf, a Plano, Texas, police

officer, knowingly falsely testified at a trial that in 1999 he

threatened her with a gun.



     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-41354
                                 -2-

     A district court shall dismiss an IFP complaint at any time

if it determines that the complaint fails to state a claim upon

which relief may be granted.   28 U.S.C. § 1915(e)(2)(B)(ii).

Such a dismissal is reviewed de novo under the standard of FED.

R. CIV. P. 12(b)(6).   Hart v. Hairston, 
343 F.3d 762
, 763-64 (5th

Cir. 2003).

     Police officers are absolutely immune from liability for

their allegedly perjurious testimony.      Enlow v. Tishomingo

County, Miss., 
962 F.2d 501
, 511 (5th Cir. 1992).     As such,

Propes’s claims against Officer Wolf are barred.

     The district court denied Propes’s motion to supplement his

complaint with claims that challenged an unspecified conviction

and sentence.   Because Propes did not contest the district

court’s ruling on appeal, he arguably has waived the right to

challenge the denial of his motion to amend.      See Yohey v.

Collins, 
985 F.2d 222
, 224-25 (5th Cir. 1993).     Assuming that

Propes’s reassertion on appeal of the claims raised in his motion

to supplement constitutes an implicit challenge to the denial of

his motion to supplement, the claims still fail as they are not

cognizable under § 1983. See Heck v. Humphrey, 
512 U.S. 477
, 486

(1994).   Accordingly, Propes’s appeal is frivolous and therefore

is dismissed.   See Howard v. King, 
707 F.2d 215
, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.

     In Propes v. Dretke, No. 04-50822 (5th Cir. Apr. 20, 2005),

we imposed the 28 U.S.C. § 1915(g) bar against Propes.     We warn
                          No. 04-41354
                               -3-

Propes that further filing of frivolous complaints or pleadings

may result in additional sanctions against him.

     APPEAL DISMISSED; SANCTION WARNING ISSUED.

Source:  CourtListener

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