Propes v. Wolf , 178 F. App'x 388 ( 2006 )


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    this opinion should not be published and is not precedent except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