Case: 10-10563 Document: 00511291752 Page: 1 Date Filed: 11/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 12, 2010
No. 10-10563
Summary Calendar Lyle W. Cayce
Clerk
ALEJANDRO ALBERTO MARTINEZ,
Plaintiff-Appellant
v.
CAPTAIN CHARLES R. HORSLEY, Captain, Preston E. Smith Unit; WESLEY
L. SLOAN, Correctional Officer, Preston E. Smith Unit; TAMBRINA L.
WRIGHT, Counsel Substitute, Preston E. Smith Unit,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:09-CV-244
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Alejandro Alberto Martinez, Texas prisoner # 1362767, filed a 42 U.S.C.
§ 1983 complaint against various prison officials and prison counsel challenging
a disciplinary proceeding against him resulting in a loss of good time credits and
commissary and recreation privileges. He sought monetary damages as well as
unspecified injunctive, declaratory, and prospective relief. The district court
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10563 Document: 00511291752 Page: 2 Date Filed: 11/12/2010
No. 10-10563
dismissed Martinez’s suit as frivolous on the basis that it is barred under the
doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). Martinez now appeals.
A prisoner may not seek monetary damages or declaratory relief under
§ 1983 based on the procedures used in a disciplinary conviction until that
disciplinary conviction has been reversed, expunged, or otherwise declared
invalid if a favorable judgment would necessarily imply the invalidity of the
disciplinary conviction. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en
banc); Heck, 512 U.S. at 486-87. A prisoner also may not recover good time
credits in a § 1983 suit. Clarke, 154 F.3d at 189. Martinez has failed to specify
what prospective relief he seeks.
In light of the foregoing, Martinez’s appeal is frivolous. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Thus, it is dismissed. See 5 TH C IR.
R. 42.2. The dismissal of this appeal as frivolous counts as a strike for purposes
of the in forma pauperis (IFP) provisions of 28 U.S.C. § 1915(g), as does the
district court’s dismissal of Martinez’s complaint. See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996). We have also dismissed as frivolous
Martinez’s appeal in Case No. 10-10540. Accordingly, Martinez has accumulated
more than three strikes and is now barred from proceeding IFP 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).
APPEAL DISMISSED AS FRIVOLOUS; 28 US.C. § 1915(g) BAR
IMPOSED.
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