United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 25, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-50979
Summary Calendar
JOSE CRISTOBAL CARDONA,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA; D’WAYNE JERNIGAN; VAL
VERDE CORRECTIONAL FACILITY, also known as the Geo Group Inc.; JOHN
SALAZAR, Captain; ROBERT ARRAMBIDE; RALPH MOSSMAN;
JOHN CAMPBELL,
Defendants-Appellees.
JOSE CRISTOBAL CARDONA,
Plaintiff-Appellant,
versus
VAL VERDE CORRECTIONAL FACILITY; JOHN C. SALAZAR,
also known as Captain Salazar; D’WAYNE JERNIGAN, Sheriff;
JOHN CAMPBELL,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:02-CV-73
USDC No. 2:02-CV-77
--------------------
Before SMITH, WIENER and OWEN, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
No. 05-50979
-2-
Jose Cristobal Cardona, federal prisoner # 40869080, moves for
leave to proceed in forma pauperis (IFP) following the district
court’s order denying IFP and certifying that his appeal is not
taken in good faith. Cardona also moves for appointment of
counsel. Cardona pursued relief in parallel actions pursuant to 42
U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), and his actions were
consolidated in the district court.
Cardona argues that the district court erred by disposing of
his Bivens claims against Assistant U.S. Attorney Arrambide and
U.S. Marshal Mossman as time-barred because his amended complaint
did not relate back to his initial complaint. Cardona contends
that he was entitled to equitable tolling and that his amended
complaint should have related back to his initial complaint. He
argues as to his Bivens and § 1983 actions that the restrictions
placed on his visitation, correspondence, and telephone access
violated his constitutional rights and that the use of chemical
agents violated the Eighth Amendment.
The district court erred by disposing of the Bivens claims
against Arrambide and Mossman as time-barred because Cardona’s
amended complaint did not relate back to his initial complaint.
See Holmes v. Greyhound Lines, Inc., 757 F.2d 1563, 1566 (5th Cir.
1985); FED. R. CIV. P. 15(c). Cardona’s IFP motion therefore is
granted. However, all of Cardona’s Bivens claims against Arrambide
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-50979
-3-
and Mossman are barred by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). We therefore affirm the district court’s judgment on the
alternative Heck basis. See Sojourner T. v. Edwards, 974 F.2d 27,
30 (5th Cir. 1992).
To the extent that Cardona’s § 1983 claims regarding the
restrictions placed upon him are intertwined with his contention
that he was unable to prepare and present an adequate defense,
those claims are barred by Heck. See Clarke v. Stalder, 154 F.3d
186, 189-90 (5th Cir. 1998) (en banc). Moreover, Cardona alleges
no specific facts to support his legal arguments regarding his
§ 1983 claims. He has failed to brief those issues for this
court’s consideration. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Finally, Cardona has not shown exceptional circumstances
requiring the appointment of counsel. See Cupit v. Jones, 835 F.2d
82, 96 (5th Cir. 1987).
IFP GRANTED; AFFIRMED; APPOINTMENT OF COUNSEL DENIED.