IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20405
Summary Calendar
VINCENT THOMAS,
Plaintiff-Appellant,
versus
J. THOMAS; GARY JOHNSON, Director, TDCJ; KELLIE HUTCHINSON;
M. WILSON; J. JACKSON, JOHN DOE SIMPSON; JOHN DOE BAGGETT;
JOHN DOE LOSACK; K. NEWTON,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-3245
--------------------
August 8, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Vincent Thomas, Texas prisoner #586916, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous
and for failure to state a claim pursuant to 28 U.S.C. § 1915A.
Thomas argues that he was denied due process in the disciplinary
hearing in which he was charged with assaulting inmate Kennedy
because the case was based on information from a fictitious
*
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that this opinion should not be published and is not precedent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. 02-20405
-2-
confidential informant. He further contends that he sufficiently
alleged a retaliation claim.
In the disciplinary hearing in which Thomas was charged with
assaulting inmate Kennedy, Thomas lost, inter alia, 90 days of
good-time credits. Although the loss of good-time credits may
give rise to a protected constitutional liberty interest, see
Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997), a
prisoner cannot recover good-time credits by way of a 42 U.S.C.
§ 1983 action. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir.
1998)(en banc). Such relief must be sought through a habeas
corpus action. See Preiser v. Rodriguez, 411 U.S. 475, 500
(1973); Clarke, 154 F.3d at 189. Furthermore, if a prisoner is
challenging the validity of the procedures used in a prison
disciplinary proceeding to deprive him of good-time credits and a
favorable judgment would imply the invalidity of the conviction
or the duration of confinement, his claims for damages and
declaratory relief are similarly not cognizable in a 42 U.S.C.
§ 1983 action until the relevant conviction has been reversed.
See Edwards v. Balisok, 520 U.S. 641, 648 (1997); Heck v.
Humphrey, 512 U.S. 477, 487 (1994).
Although the district court herein did not consider the
above principles in analyzing Thomas’ due process claim, the
district court’s dismissal was nonetheless appropriate and should
be affirmed under Heck. See Johnson v. McCotter, 803 F.2d 830,
834 (5th Cir. 1986). The dismissal of this claim is “with
No. 02-20405
-3-
prejudice to [its] being asserted again until the Heck conditions
are met.” Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir.
1996).
Thomas’s retaliation claim fails because he does not
identify the specific constitutional right he invoked for which
he suffered retaliation. See Woods v. Smith, 60 F.3d 1161, 1165-
66 (5th Cir. 1995). He asserts that Major Thomas and other
defendants retaliated against him, in the form of filing false
disciplinary charges, for his refusal to become an informant
against the Muslim community. Unlike the prisoner in Woods,
Thomas does not indicate that he complained about this conduct to
Major Thomas’ supervisors and then suffered retaliation for
exercising his constitutional right of access to the courts. See
60 F.3d at 1162-63. Based on the foregoing, the district court
did not err in dismissing Thomas’ retaliation claim.
The district court’s dismissal of the complaint as frivolous
and for failure to state a claim counts as a “strike” for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 385-87 (5th Cir. 1996). Thomas is warned that if he
accumulates three strikes pursuant to 28 U.S.C. § 1915(g), 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. Id.
AFFIRMED; SANCTION WARNING ISSUED.
Thomas v. Thomas
Combined Opinion