IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11356
KIERON DEREK PENIGAR,
Plaintiff-Appellant,
versus
QUAY F. PARKER, 259 District Judge; GARY M. BROWN, 259th
District Attorney; ROBERT SCOTT FURGESON, Attorney, State Counsel
for Offenders; CANDACE NORRIS, Attorney, State Counsel for
Offenders; NONA CARTER, 259 District Clerk,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:99-CV-219-C
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June 6, 2002
ON PETITION FOR REHEARING
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that the petition for rehearing is GRANTED.
The prior panel opinion is WITHDRAWN, and this opinion is
SUBSTITUTED therefore.
Kieron Derek Penigar (TDCJ # 721657) appeals the district
court’s dismissal as frivolous of his pro se and in forma
pauperis (IFP) civil rights complaint wherein he alleged that he
was falsely charged with assaulting two prison guards. The
*
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this opinion should not be published and is not precedent except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. 01-11356
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district court determined that the complaint was frivolous
because the defendants were either immune from suit or were not
state actors and because Penigar had not shown that his
conviction had been set aside or terminated in his favor.
The PLRA requires a district court to dismiss a prisoner’s
IFP civil rights complaint if the court determines that the
action is frivolous. Black v. Warren, 134 F.3d 732, 733 (5th
Cir. 1998); see 28 U.S.C. § 1915(e)(2)(B)(i). An IFP complaint
that lacks an arguable basis in fact or law may be dismissed as
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). Norton v.
Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
Although he argues that his claim should not have been
dismissed under the principles espoused in Heck v. Humphrey, 512
U.S. 477 (1994), Penigar does not challenge the district court’s
determination that the defendants were either protected by
immunity or were not state actors. Any such challenge therefore
is deemed waived. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). With respect to Penigar’s claim that he was
entitled to an evidentiary hearing, an evidentiary hearing is not
required when the record is complete or the claimant raises only
legal claims that can be resolved without the taking of
additional evidence. See Lawrence v. Lensing, 42 F.3d 255, 259
(5th Cir. 1994)(28 U.S.C. § 2254 case).
Penigar’s appeal is without arguable merit and is therefore
dismissed as frivolous. See Howard v. King, 707 F.2d 215, 220
No. 01-11356
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(5th Cir. 1983); 5TH CIR. R. 42.2. The dismissal of this appeal
and the dismissal as frivolous by the district court each count
as a "strike" for purposes of 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). In addition,
Penigar accumulated two strikes with the dismissal of the appeal
in Penigar v. Johnson, No. 01-11290 (5th Cir. Feb. 20, 2002)
(unpublished). Because he has accumulated more than three
“strikes” under 28 U.S.C. § 1915(g), Penigar is BARRED from
proceeding IFP in any civil action or appeal unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g); Carson v. Johnson, 112 F.3d 818, 819 (5th Cir. 1997).
APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.