IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10945
Summary Calendar
JOHN ALBERT ESTRADA, SR
Plaintiff - Appellant
v.
NFN DWYER, DR; S FINNEY, Nurse; FERNANDO DELAROSA, Warden;
WAYNE SCOTT, Director; BILL LONG, District Attorney, Dallas
County
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:00-CV-63
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May 1, 2002
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
John Albert Estrada, Sr., Texas prisoner #744108, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 complaint
as frivolous, with prejudice, until the conditions set forth in
Heck v. Humphrey, 512 U.S. 477 (1994) are met. Estrada asserts
that the district court misconstrued his pleadings when it found
that consideration of his 42 U.S.C. § 1983 claim relating to
*
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that this opinion should not be published and is not precedent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. 01-10945
-2-
inadequate dental care was barred by Heck because the court could
not consider his dental care claims without questioning the
validity of his parole revocation. Estrada was given numerous
opportunities to set forth his best case and was informed by the
magistrate judge that claims that called into question the
validity of his parole revocation were barred in accordance with
Heck. Estrada argues that the claims are distinct, yet his
pleadings indicate that he is using his civil rights claim as a
vehicle for challenging his parole revocation. Such a challenge
is barred by Heck, and the district court properly dismissed
Estrada’s complaint. See 42 U.S.C. § 1997e(c)(1); see also
Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
Estrada also asserts that this appeal should be consolidated
with docket number 01-40489 and that the court should return a
district court filing fee that he previously paid. The
consolidation issue is moot since docket number 01-40489 has been
dismissed. See Estrada v. Love, No. 01-40489 (5th Cir. Dec. 4,
2001) (unpublished). Additionally, Estrada cites no authority
that would allow this court to return the filing fee, and his
request is rejected.
This appeal is without arguable merit and is frivolous. See
Buck v. United States, 967 F.3d 1060, 1062 (5th Cir. 1996).
Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R.
42.2. The dismissal of this appeal and the district court’s
dismissal of Estrada’s complaint count as two “strikes” for
No. 01-10945
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purposes of 28 U.S.C. § 1915(g). In addition, there are two
previous strikes against Estrada in connection with Estrada v.
Dominguez, No. 01-10844 (5th Cir. January 16, 2002) (unpublished)
and the district court proceeding from which the appeal was
taken, Estrada v. Dominguez, No. 2:00-CV-0064 (N.D. Tex. 2001),
both of which were dismissed as frivolous.
Therefore, because Estrada has accumulated more than three
“strikes” under 28 U.S.C. § 1915(g), Estrada is BARRED from
proceeding 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. See 28 U.S.C.
§ 1915(g). Additionally, Estrada is warned that he may not abuse
the court system. Further frivolous filings in this court or in
any court subject to this court’s jurisdiction may warrant
imposition of financial penalties and further limits on Estrada’s
access to the judicial system. Estrada is instructed to review
pending matters to ensure that they are not frivolous.
APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED; ADDITIONAL
SANCTIONS WARNING ISSUED.