IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30787
Conference Calendar
DONNIE LEE THOMAS,
Plaintiff-Appellant,
versus
RICHARD L. STALDER; PEGGY LANDRY; GRETCHEN MCCARSTEL;
JOHN DOES, 1-5; JANE DOES, 1-5; FRED Y. CLARK;
BILL TUGGLE; HENRY L. GOINES; LOUISIANA DEPARTMENT
OF PUBLIC SAFETY; LOUISIANA DEPARTMENT OF PROBATION
& PAROLE; DON HATHAWAY,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-515
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February 20, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Donnie Lee Thomas, Louisiana prisoner #106606, appeals the
dismissal without prejudice of his complaint filed pursuant to 42
U.S.C. § 1983. The district court determined that Thomas’s civil
rights complaint should be dismissed as frivolous for failure to
satisfy Heck v. Humphrey, 512 U.S. 477 (1994), and that insofar
*
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that this opinion should not be published and is not precedent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. 01-30787
-2-
as his complaint could be construed as a federal petition for
habeas corpus relief, it should be dismissed for failure to
exhaust state-court remedies.
Thomas’s motions for appointment of counsel are DENIED.
Thomas challenges the district court’s reliance on Heck.
Because, however, a judgment in Thomas’s favor would necessarily
imply the invalidity of the revocation of his release and the
resulting loss of good-time credits, his claims for declaratory
relief and monetary damages fall within the parameters of Heck.
See Edwards v. Balisok, 520 U.S. 641, 647-48 (1997).
Accordingly, the district court did not abuse its discretion in
dismissing the civil rights action. See Norton v. Dimazana, 122
F.3d 286, 291 (5th Cir. 1997).
The district court also determined “that with respect to the
possible petition for habeas corpus,” Thomas’s petition should be
dismissed without prejudice for failure to exhaust state-court
remedies. Thomas offers no convincing argument that the district
court erred in reaching this conclusion.
The district court dismissed Thomas’s complaint without
prejudice; however, because the complaint is premature under
Heck, the dismissal should have been with prejudice. Boyd v.
Biggers, 31 F.3d 279, 283-84 (5th Cir. 1994). Although there is
no cross-appeal, the dismissal of Thomas’s 42 U.S.C. § 1983
complaint is MODIFIED from “without prejudice” to “with prejudice
as frivolous” pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See
Marts v. Hines, 117 F.3d 1504, 1505-06 (5th Cir. 1997)(en banc).
No. 01-30787
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Thomas’s appeal is without merit and therefore frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R.
42.2. The district court’s dismissal of the present case and our
dismissal of this appeal count as two strikes against Thomas for
purposes of 28 U.S.C. § 1915(g). We caution Thomas that once he
accumulates three strikes, he may not proceed in forma pauperis
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; THREE-STRIKES WARNING ISSUED.