IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10687
Conference Calendar
TONY RAY MITCHELL,
Plaintiff-Appellant,
versus
WALLACE BOWMAN, Judge; ROBERT ANTHONY
MARTINEZ; LANCE T. EVANS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CV-246-A
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February 14, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Tony Ray Mitchell, Texas prisoner # 488816, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights
action as frivolous pursuant to 28 U.S.C. § 1915(e)(2). Mitchell
argues that the defendants violated his constitutional right to
have the state court order dismissing the criminal charges
against him enforced. He argues that the defendants acted in
absence of all jurisdiction in revoking his parole based on the
dismissed state criminal charges, and therefore, they are not
*
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that this opinion should not be published and is not precedent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. 00-10687
-2-
entitled to absolute immunity. Mitchell is effectively
challenging the revocation of his parole. Because Mitchell has
not shown that the parole revocation decision has been reversed,
expunged, declared invalid, or called into question by a federal
court’s issuance of a writ of habeas corpus, Mitchell’s claim is
not cognizable under 42 U.S.C. § 1983 and must be dismissed. See
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Mitchell’s appeal is without arguable merit and therefore,
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, Mitchell’s appeal is DISMISSED. See 5TH CIR.
R. 42.2. Mitchell is advised that the district court’s dismissal
of this action and this court’s dismissal of this appeal both
count as “strikes” pursuant to 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Mitchell is also
advised that he has two strikes which were imposed in Mitchell v.
Garrett, No. 4:00-CV-235-A (N.D. Tex. June 6, 2000) and in
Mitchell v. Garrett, No. 00-10686 (5th Cir. Dec. 13, 2000).
Mitchell has now accumulated at least three strikes under 28
U.S.C. § 1915(g) and may not proceed in forma pauperis in any
civil action or appeal while he is incarcerated or detained in
any facility unless he is under imminent danger of serious
physical injury.
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.
Mitchell v. Bowman
Combined Opinion