                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   July 25, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-31079
                          Summary Calendar



JOHN GENE SIMON, SR.,

                                     Plaintiff-Appellant,

versus

BETH LUNDY; TONY MANCUSO; DAVID F. WAGONER; POLICE DEPARTMENT
CITY OF LAKE CHARLES; DON DIXON; CANDY LEWIS; GARY SENS,

                                     Defendants-Appellees.

                         --------------------
            Appeal from the United States District Court
                for the Western District of Louisiana
                      USDC No. 2:04-CV-1094-JTT
                         --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     John Gene Simon, Sr., Louisiana prisoner #246547, appeals

the district court’s dismissal of his 28 U.S.C. § 1983 action as

frivolous and for failure to state a claim upon which relief may

be granted.    Simon argues that the district court erred by

dismissing his complaint without giving him the opportunity to

amend it.   He further asserts that he stated a viable Fourth

Amendment claim for the taking of DNA samples from him, a viable



     *
       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this opinion should not be published and is not precedent except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. 04-31079
                                -2-

Fourth Amendment claim for false imprisonment, and a viable

Fourteenth Amendment claim for malicious prosecution.

      Simon’s complaint was thorough and gave a detailed

explanation of the claims he was raising.    Furthermore, Simon

could have attempted to amend his complaint between the issuance

of the magistrate judge’s report and recommendation and the

district court’s dismissal.   The only specific amendment that

Simon states that he wishes to make would be futile.

Accordingly, the district court did not err by dismissing Simon’s

complaint without expressly giving him the opportunity to amend

it.   See Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999).

      The district court did not err by dismissing Simon’s Fourth

Amendment claim for the taking of DNA samples from him.     See

Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003).     Even

disregarding the only statement of Dee Simon that was arguably

protected by the marital communications privilege, the evidence

presented at the preliminary hearing established that there was

probable cause to arrest and detain Simon on the first-degree

murder charge that was later dismissed.     See Sorenson v. Ferrie,

134 F.3d 325, 328 (5th Cir. 1998); United States v. Martin, 615

F.2d 318, 323-27 (5th Cir. 1980).   Accordingly, the district

court did not err by dismissing Simon’s Fourth Amendment false

imprisonment claim.   See Brown v. Lyford, 243 F.3d 185, 189 (5th

Cir. 2001).   As the remainder of his claims were not viable, the

district court did not err by dismissing Simon’s Fourteenth
                            No. 04-31079
                                 -3-

Amendment claim for malicious prosecution.    See Castellano v.

Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) (en banc) (malicious

prosecution, standing alone, is not a constitutional violation).

     Simon’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Accordingly, it is DISMISSED.    See 5TH CIR. R. 42.2.   Both the

district court’s dismissal of the complaint and our dismissal of

the instant appeal count as “strikes” for purposes of 28 U.S.C.

§ 1915(g).    See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996).    The dismissal of Simon’s complaint as frivolous and for

failure to state a claim upon which relief may be granted in the

companion case of Simon v. Dixon, No. 2:04-CV-782 (W.D. Tex. Aug.

30, 2004) (unpublished), counts as an additional strike.     See 28

U.S.C. § 1915(g).    Simon has now accumulated three strikes under

28 U.S.C. § 1915(g), and he may not proceed in forma pauperis in

any civil action or appeal filed while he is incarcerated or

detained in any facility unless he is under imminent danger of

serious physical injury.    See 28 U.S.C. § 1915(g).

     APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR

IMPOSED
