     Case: 17-50003      Document: 00514384133         Page: 1    Date Filed: 03/13/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-50003
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                      March 13, 2018
                                                                         Lyle W. Cayce
ROBERT ALLEN CLARK, JR.,                                                      Clerk


                                                 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-50003

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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                                  No. 17-50003

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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