     Case: 14-10211      Document: 00512814777         Page: 1    Date Filed: 10/24/2014




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

                                                                                FILED
                                    No. 14-10211                         October 24, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
CARLOS WAYNE TOOMBS,

                                                 Plaintiff-Appellant

v.

DIANNA L. MASSINGILL, Assistant District Attorney; TIM CANTRELL,
Trial Counsel; RICKY DeARMON, Amarillo Police Officer; JIM MCKENNEY,
Sergeant, Amarillo Police Officer; LINDA VAUGHN,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:13-CV-245


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
           Plaintiff-Appellant Carlos Wayne Toombs, Texas prisoner # 1109593,
appeals the dismissal of his 42 U.S.C. § 1983 action as frivolous. Alleging that
the defendants conspired to withhold and destroy potentially exculpatory
evidence and to cover up their actions, the complaint asked the district court
to set aside Toombs’s conviction or remand for a new trial. After the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10211       Document: 00512814777         Page: 2     Date Filed: 10/24/2014


                                       No. 14-10211

court dismissed the complaint because the claims were not cognizable in a §
1983 action under Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), or were
barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), or both, Toombs
moved to add a claim that he was entitled to monetary damages. The district
court denied the motion and noted that, even if Toombs were allowed to amend
his complaint, the claims “would still be barred by Heck.”
       According to Toombs, his complaint challenges misconduct or illegal acts
by the defendants and not the fact or duration of his imprisonment. He also
contends that his complaint does not challenge his conviction because the
defendants’ illegal acts occurred prior to his conviction, and he maintains that
Heck cannot be applied to future convictions. He further asserts that his
claims do not challenge his conviction because stipulations by the defendants
addressed the missing evidence and “therefore [left] it out of the conviction.” 1
       Despite his protestations to the contrary, Toombs’s complaint plainly
asked the court to set aside his conviction or remand for a new trial on the
ground that the defendants had violated his constitutional rights. Because
setting aside his conviction would result in his release from prison, and a
judgment granting a new trial would necessarily imply the invalidity of his
conviction, the district court did not abuse its discretion in dismissing the §
1983 complaint as frivolous. See Heck, 512 U.S. at 486-87; Preiser, 411 U.S. at
499-500.
       As the instant appeal is without arguable merit, it is DISMISSED as
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.


       1 Although Toombs also asks us to consider his post-judgment claim for monetary
damages, he did not appeal the district court’s denial of his Federal Rule of Civil Procedure
60(b) motion, so it is not properly before the court. See Williams v. Chater, 87 F.3d 702, 705
(5th Cir. 1996). Even if we liberally construe his brief to raise a claim that he should have
been allowed to add a claim for damages, his suit would still be barred by Heck. See Heck,
512 U.S. at 486-87.


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                                  No. 14-10211

R. 42.2. The dismissal of this appeal counts as a strike under 28 U.S.C. §
1915(g), as does the district court’s dismissal of the complaint as frivolous. See
§ 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Toombs is WARNED that if he accumulates at least three strikes under §
1915(g), he may not proceed in forma pauperis in any civil action or appeal in
a court of the United States while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury. See § 1915(g).




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