     Case: 15-10177      Document: 00513489889         Page: 1    Date Filed: 05/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                    No. 15-10177                               May 3, 2016
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
CARLOS WAYNE TOOMBS, also known as Carlos Wayne Durham,

                                                 Plaintiff-Appellant

v.

DIANNA MASSINGILL, Assistant District Attorney; TIM CANTRELL, Trial
Counsel; RICKY DEARMAN, Amarillo Police Officer; SERGEANT JIM
MCKENNY, Amarillo Police Officer,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:14-CV-262


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Carlos Wayne Toombs, Texas prisoner # 1109593, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous and malicious.
According to Toombs, the district court erred in determining that the claims in
his complaint were barred under Heck v. Humphrey, 512 U.S. 477 (1994), and
thus frivolous. We find no abuse of discretion in the determination because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-10177     Document: 00513489889      Page: 2    Date Filed: 05/03/2016


                                  No. 15-10177

the complaint seeks monetary damages from defense counsel, the prosecutor,
and two police officers “for the unjustified deprivation of [Toombs’s] life, liberty
and property” but does not allege that his conviction or sentence has been
reversed, expunged, set aside, or otherwise undermined. See Boyd v. Biggers,
31 F.3d 279, 283 (5th Cir. 1994). Nor do we find an abuse of discretion in the
district court’s determination that the complaint, which was duplicative of a
prior § 1983 suit, was malicious. See Bailey v. Johnson, 846 F.2d 1019, 1021
(5th Cir. 1988). Further, Toombs fails to assert or demonstrate any error in
the district court’s rejection of his DNA testing claim, which he raised in a
postjudgment motion. See Skinner v. Switzer, 562 U.S. 521, 525 (2011); Dist.
Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009).
      The appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR. R. 42.2. The
motions for an evidentiary hearing and to compel the production of evidence
are DENIED. We previously warned Toombs that he had two strikes under 28
U.S.C. § 1915(g). The district court’s dismissal of his complaint in this case, as
well as our dismissal of this appeal, count as additional strikes. See Coleman
v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015); Adepegba v. Hammons, 103 F.3d
383, 387 (5th Cir. 1996). Because Toombs has accumulated more than three
strikes, he is BARRED from proceeding IFP in any civil action while he is
incarcerated unless he is under imminent danger of serious physical injury.
See § 1915(g).




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