Opinion

Drummer v. Brown

Court
Court of Appeals for the Fifth Circuit
Filed
Oct 9, 2024
Status
Unpublished
Nature of suit
Prisoner w/ out Counsel
Cited by
0 cases
Authority
More cited than 30.7%

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.

2

Case: 24-50004 Document: 37-1 Page: 3 Date Filed: 10/09/2024

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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Case: 24-50004 Document: 37-1 Page: 4 Date Filed: 10/09/2024

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).

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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