IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40299
Conference Calendar
JAMES HANES,
Plaintiff-Appellant,
versus
WEBB BAIRD, Sixth District Court Lamar County Judge,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 3:98-CV-85
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April 10, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
James Hanes, Texas prisoner # 559496, appeals the district
court’s dismissal of his civil complaint as frivolous. He argues
that the plea agreement pertaining to his state conviction was
invalid, that the state trial court did not inquire about the
agreement and lacked jurisdiction over Hanes’ criminal case, and
that the district court erroneously construed Hanes’ suit as a 42
U.S.C. § 1983 complaint as opposed to a contractual claim.
*
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that this opinion should not be published and is not precedent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. 00-40299
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A district court may dismiss an IFP complaint as frivolous
under 28 U.S.C. § 1915(e)(2)(B)(i) if it lacks an arguable basis
either in law or in fact. Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997). We review such a dismissal for abuse of
discretion. Id.
Under Heck v. Humphrey, 512 U.S. 477, 487 (1994), with
respect to a civil case pertaining to a conviction, “the district
court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence.” A prisoner may not bring a civil action seeking
damages or declaratory relief based upon a wrongful conviction
unless the conviction has been reversed, expunged, or otherwise
declared invalid. See id. at 486-87.
Hanes’ complaint and appeal seek to challenge the validity
of his conviction through a civil suit. The district court did
not abuse its discretion for dismissing the complaint as
frivolous. See Heck, 512 U.S. at 487. Hanes’ appeal lacks
arguable merit and is DISMISSED 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 as frivolous under § 1915 counts
as a strike against Hanes. See Adepegba v. Hammons, 103 F.3d
383, 387 (5th Cir. 1996). This court’s dismissal counts as
another strike. Id. If Hanes accumulates three strikes, he may
not proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is in imminent
danger of serious physical injury. See 28 U.S.C. § 1915(g).
Hanes is cautioned to review any pending appeals to ensure that
No. 00-40299
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they do not raise frivolous issues. His motion for the
appointment of counsel is DENIED.