United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 30, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41458
Summary Calendar
JOHN RIVES,
Plaintiff-Appellant,
versus
KELLI WARD, Assistant Regional Director;
D. DOUGHTY, Senior Warden; F. REESCANO,
Treatment Warden; M. DABNEY, Captain; J.
BROWN, Correctional Officer; J. LEWIS,
Correctional Officer,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-483
--------------------
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
John Rives, Texas prisoner #603511, appeals the district
court’s dismissal of his civil rights action under 42 U.S.C.
§ 1983 as frivolous and for failure to state a claim under 28
U.S.C. § 1915(e)(2). Rives alleged that his constitutional
*
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that this opinion should not be published and is not precedent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. 02-41458
-2-
rights were violated in connection with a prison disciplinary
proceeding. Rives’ motion to file a corrected brief is GRANTED.
Rives’ challenges to his disciplinary proceeding would imply
the invalidity of his conviction. As he has not shown that his
disciplinary conviction has been overturned or otherwise
invalidated, he may not maintain his claim for damages in a 42
U.S.C. § 1983 action. See Edwards v. Balisok, 520 U.S. 641, 648
(1997); Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Similarly, he cannot seek injunctive or declaratory relief in
this 42 U.S.C. § 1983 action because these claims should be
raised in a habeas petition. Preiser v. Rodriguez, 411 U.S. 475,
488-90 (1973); Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir.
1998) (en banc). Finally, the district court did not abuse its
discretion in failing to allow Rives to amend his compliant. See
Ashe v. Corley, 992 F.2d 540, 542 (5th Cir. 1993).
Rives’ appeal is without arguable merit and is DISMISSED as
frivolous. 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983). The dismissal of the appeal as frivolous and
the district court’s dismissal of Rives’ 42 U.S.C. § 1983
complaint as frivolous and for failure to state a claim each
count as a “strike” under 28 U.S.C. § 1915(g). Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Rives is warned
that once he accumulates three strikes, he may not proceed IFP in
any civil action or appeal filed while he is incarcerated or
No. 02-41458
-3-
detained in any facility unless he is under imminent danger of
serious physical injury. 28 U.S.C. § 1915(g).
MOTION FOR LEAVE TO FILE CORRECTED BRIEF GRANTED; APPEAL
DISMISSED; THREE-STRIKES WARNING ISSUED.