Martinez v. City of Donna

Case: 08-41050 Document: 00511201984 Page: 1 Date Filed: 08/12/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 12, 2010
No. 08-41050
Summary Calendar Lyle W. Cayce
Clerk

ROBINSON MARTINEZ,

Plaintiff-Appellant,

CITY OF DONNA,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Texas, McAllen Division
USDC No. 7:07-CV-256

Before KING, BENAVIDES and ELROD, Circuit Judges.
PER CURIAM:*
Robinson Martinez, Texas prisoner # 1466103, seeks leave to proceed in
forma pauperis (IFP) on appeal to challenge the district court’s dismissal of his
civil rights complaint against the City of Donna and numerous police officers.
In order to obtain IFP status, Martinez must show both that he is financially
eligible and that he will present a nonfrivolous issue for appeal. See Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982).

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 08-41050 Document: 00511201984 Page: 2 Date Filed: 08/12/2010
No. 08-41050

Martinez is currently serving a 10-year sentence following his conviction
for manslaughter which stemmed from a fatal automobile accident. He now
argues that he is the victim of false arrest and malicious prosecution. The
district court correctly concluded that Martinez’s claims for damages based on
a wrongful conviction may not be pursued until his conviction is overturned,
expunged, or otherwise invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87
(1994); Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). Martinez does not
address this aspect of the district court’s ruling and has effectively abandoned
it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Martinez’s appeal lacks arguable merit and we dismiss it as frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2. The
district court’s dismissal of Martinez’s complaint and our dismissal of this appeal
as frivolous each count as strikes under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We caution Martinez that if he
accumulates three strikes, he will not be permitted to proceed IFP in any civil
action or appeal filed while incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.