United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 2, 2006
Charles R. Fulbruge III
Clerk
No. 04-51075
Summary Calendar
GORDON SIMMONDS,
Plaintiff-Appellant,
versus
GREG ABBOTT, Texas Attorney General,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CV-166
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges
PER CURIAM:*
Gordon Simmonds, Texas prisoner # 932489, filed a complaint in
the district court against Greg Abbott, Attorney General of Texas,
complaining that Texas Government Code § 498.045, pertaining to
forfeiture of good conduct time for filing frivolous and malicious
lawsuits, is an unconstitutional bill of attainder. The district
court determined that Simmonds lack standing and dismissed the
complaint without prejudice for lack of jurisdiction. Simmonds has
appealed.
*
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this opinion should not be published and is not precedent except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. 04-51075
- 2 -
The judicial power of the United States courts under Article
III, § 2, of the Constitution extends only to cases and
controversies “of the sort traditionally amenable to, and resolved
by, the judicial process.” Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 102 (1998). “Standing to sue is part of
the common understanding of what it takes to make a justiciable
case.” Id. To have standing, a plaintiff must suffer an injury in
fact, that is, “a harm suffered by the plaintiff that is concrete
and actual or imminent, not conjectural or hypothetical.” Id. at
103. “Allegations of possible future injury do not satisfy the
requirements of Art. III. A threatened injury must be ‘certainly
impending’ to constitute injury in fact.” Whitmore v. Arkansas,
495 U.S. 149, 159 (1990) (quotation marks omitted).
Under the statute at issue, an inmate shall forfeit good
conduct time if more than one lawsuit or habeas application is
dismissed as frivolous or malicious. TEX. GOV’T CODE ANN. § 498.0045
(Vernon 2004). In his complaint, Simmonds contended only that the
statute is an unlawful bill of attainder and that the defendant
attorney general should be enjoined from enforcing the statute. In
his motion to amend his complaint, Simmonds contended that he
already has one prior lawsuit that was dismissed as frivolous.
Simmonds contends that he did not file a lawsuit and decided not to
appeal the dismissal of another lawsuit because he was concerned
that the lawsuit and the appeal would be regarded as frivolous and
that he would forfeit good conduct time as a result.
No. 04-51075
- 3 -
The acts necessary to make the complained of injury happen to
Simmonds are at least partly within his own control. See Luhan v.
Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992). In that
circumstance, Simmonds must show that the threatened injury has a
“high degree of immediacy.” See id. Simmonds has not made such a
showing. Because amendment of the complaint would have been
futile, Simmonds has not shown that the district court abused its
discretion in denying his motion to amend. See Lowrey v. Texas A&M
Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997). The judgment is
AFFIRMED.