The opinion
Case: 24-50004 Document: 37-1 Page: 1 Date Filed: 10/09/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 24-50004 October 9, 2024
Summary Calendar Lyle W. Cayce
____________ Clerk
Cornel Jackie Drummer,
Plaintiff—Appellant,
Alvin C. Brown, Official Capacity, #2236, San Antonio Police
Department Criminal Investigator, Homicide Detective; Reginal Speller,
Official Capacity, #2241, San Antonio Police Department Criminal
Investigator, Criminal Evidence Technician; William McManus,
Official Capacity, Chief of Police, San Antonio Police Department; Chuck
Weir, Official Capacity, Assistant City Attorney, City of San Antonio; Ron
Nironberg, Official Capacity, City Mayor, City of San Antonio;
Richard F. Stengel, Official Capacity, Ballistic Analyst, Toolmark and
Firearms Analyst, Bexar County Criminal Investigative Laboratory County
Criminal Investigative,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:23-CV-389
______________________________
Before Jolly, Graves, and Oldham, Circuit Judges.
Case: 24-50004 Document: 37-1 Page: 2 Date Filed: 10/09/2024
No. 24-50004
Per Curiam: *
Cornel Jackie Drummer, Texas prisoner # 619316, filed a 42 U.S.C.
§ 1983 civil action against the defendants, asserting claims of evidence
falsification, which resulted in his murder conviction, as well as claims of
supervisory liability. He also asserted claims for monetary damages and
injunctive relief. The district court determined that Drummer’s claims were
barred by the applicable statute of limitations and by Heck v. Humphrey, 512
U.S. 477 (1994), and dismissed the action as frivolous and for failure to state
a claim upon which relief may be granted, pursuant to 28 U.S.C. §
1915A(b)(1). Drummer now appeals the dismissal.
Regarding Drummer’s claims against the defendants for monetary
damages, a judgment in favor of Drummer on these claims would necessarily
imply the invalidity of his conviction. See Heck, 512 U.S. at 486-87; Connors
v. Graves, 538 F.3d 373, 377 (5th Cir. 2008); see also Mackey v. Dickson, 47
F.3d 744, 746 (5th Cir. 1995). Drummer has not shown that his murder
conviction has been reversed on direct appeal or otherwise invalidated by
official action; accordingly, the claims are barred by Heck. See Heck, 512 U.S.
at 486-87. The district court’s dismissal of these claims based on the two-
year statute of limitations was erroneous because, under Heck, Drummer’s
§ 1983 cause of action has yet to accrue. See id. at 486-90; Wells v. Bonner, 45
F.3d 90, 94 (5th Cir. 1995). However, we may affirm the dismissal on any
basis supported by the record. See Hosein v. Gonzales, 452 F.3d 401, 403 (5th
Cir. 2006); United States v. Ho, 311 F.3d 589, 602 n.12 (5th Cir. 2002).
To the extent that Drummer’s claim for injunctive relief is not barred
by Heck, the district court correctly determined that this claim was barred by
the applicable statute of limitations. See In re FEMA Trailer Formaldehyde
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 24-50004
Prods. Liab. Litig., 646 F.3d 185, 190 (5th Cir. 2011), abrogated in part on other
grounds by United States v. Wong, 575 U.S. 402, 407 (2015); King-White v.
Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015).
Next, to the extent that Drummer raises a new allegation against the
defendants on appeal for having a policy and custom of falsifying evidence
“that [was] responsible for sending thousands of men and women to prison
and [death row] for crimes they did not commit” that was not raised in the
district court, we will not consider new factual allegations or evidence
presented for the first time on appeal, see Theriot v. Par. of Jefferson, 185 F.3d
477, 491 n.26 (5th Cir. 1999). Nor will we permit a party to present a new
theory of relief on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999). In any event, this allegation is merely conclusory. See
Coleman v. Lincoln Par. Det. Ctr., 858 F.3d 307, 309 (5th Cir. 2017). Further,
his argument that the Heck bar is inapplicable due to “extraordinary and
exceptional circumstances” caused by the defendants’ conduct is
unsupported by relevant legal authority.
Drummer’s arguments fail to show that the district court erred in
determining that his amended complaint was frivolous and failed to state a
claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1);
Carlucci v. Chapa, 884 F.3d 534, 537-38 (5th Cir. 2018); Morris v. McAllester,
702 F.3d 187, 189-92 (5th Cir. 2012); see also Gonzales v. Wyatt, 157 F.3d 1016,
1019-20 (5th Cir. 1998).
Accordingly, the judgment of the district court is AFFIRMED. The
district court’s dismissal of Drummer’s amended complaint counts as a
strike for purposes of 28 U.S.C. § 1915(g). See Coleman v. Tollefson, 575 U.S.
532, 534-41 (2015). Drummer received two previous strikes for purposes of
§ 1915(g). See Drummer v. Maynard, No. 22-40449, 2023 WL 3580702, 1 (5th
Cir. May 22, 2023) (unpublished). Because Drummer has now accumulated
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No. 24-50004
three strikes, he is BARRED from proceeding 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 § 1915(g).
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