IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20861
Conference Calendar
EUGENE EARL JORDAN,
Plaintiff-Appellant,
versus
JANET MALONE SANDERS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-1470
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August 21, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Eugene Earl Jordan, Texas prisoner # 693703, proceeding pro
se and in forma pauperis, appeals the district court’s dismissal
of his 42 U.S.C. § 1983 complaint. Jordan contends that the
court reporter omitted the presentence investigation report from
the state appellate record and deprived him of the opportunity to
present the reversible errors attendant to his conviction to the
state court on appeal.
We review the dismissal of a prisoner’s civil rights
complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) for an
abuse of discretion. See Berry v. Brady, 192 F.3d 504, 507 (5th
*
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that this opinion should not be published and is not precedent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. 00-20861
-2-
Cir. 1999). We review de novo a 28 U.S.C. § 1915(e)(2)(B)(ii)
dismissal for failure to state a claim upon which relief can be
granted. See Berry, 192 F.3d at 507.
A prisoner may not recover damages for 42 U.S.C. § 1983
claims that question the validity of a conviction because such
claims are not cognizable until the prisoner has demonstrated
that his conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by an
authorized state tribunal, or called into question by a federal
court’s issuance of a writ of habeas corpus under 28 U.S.C.
§ 2254. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Jordan’s
42 U.S.C. § 1983 allegations question the validity of his
conviction; thus, his 42 U.S.C. § 1983 claim is not cognizable.
See Heck, 512 U.S. at 486-87.
Jordan’s appeal is without arguable merit, is frivolous, and
is DISMISSED. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2. The dismissal of Jordan’s appeal and the
district court’s dismissal count as two “strikes” under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). We caution Jordan that once he 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 under imminent danger of serious physical injury. See 28
U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.