United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 03-10094
Conference Calendar
DAVID ALAN PUGH,
Plaintiff-Appellant,
versus
HELEN SHEPPARD, Daniel Parole Officer I; CHRISTI WOODARD,
Daniel Unit Parole Officer II; PHILLIP DOUGHTY, Assistant
Regional Supervisor for the Western Region; M. CRIBBS,
Sergeant of the Correctional Officers, Price Daniel Unit;
CYNTHIA CALLAWAY, Counsel Substitute II, Price Daniel Unit;
RANDY LEWIS, Captain of the Correctional Officers, Price Daniel
Unit; WILHELMENIA HOWARD, Senior Warden, Price Daniel Unit;
MANUAL PERALTA, Assistant Administrator for Offender Grievance;
WAYNE SCOTT, Director,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:00-CV-410-C
--------------------
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
David Alan Pugh, Texas prisoner # 613654, appeals the
dismissal his 42 U.S.C. § 1983 complaint as frivolous and for
failure to state a claim under 28 U.S.C. §§ 1915(e) and 1915A.
Pugh’s complaint alleged that officials at the Texas Department
*
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that this opinion should not be published and is not precedent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. 03-10094
-2-
of Criminal Justice, Price Daniel Unit, conspired to retaliate
against him for exercising his First Amendment right to free
speech. Specifically, Pugh asserted that, after writing a letter
to Parole Officer (PO) Fairy Eicke to complain of PO Christie
Woodard’s unfair parole review practices, he was falsely charged
with threatening to inflict harm on Woodard.
On appeal, Pugh argues that the district court erred in
dismissing his complaint with prejudice. Pugh contends that the
district court improperly determined that his transfer to a
different prison unit precluded his claims for declaratory and
injunctive relief. Pugh further asserts that the district court
erred in determining that his challenges to the disciplinary
proceedings were barred by Heck v. Humphrey, 512 U.S. 477, 486
(1994). Pugh argues that the statements in his letter to Eicke
were non-threatening and were entitled to First Amendment
protection. He renews his claim that the defendants conspired to
retaliate against him for exercising this constitutional right,
and he contends that he exhausted his administrative remedies
with respect to these allegations.
Even if the statements in Pugh’s letter to Eicke were non-
threatening and were entitled to First Amendment protection, Pugh
fails to recite an adequate chronology of events from which
retaliation may plausibly be inferred. Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995). Accordingly, regardless whether
Pugh’s administrative remedies were exhausted, his conclusional
No. 03-10094
-3-
allegations that the defendants conspired to falsely charge him
with threatening to inflict harm on Woodard lack merit.
If credited, Pugh’s challenges to the disciplinary
proceedings, including his contention that the case should be
expunged from his record, would necessarily imply that his
sentence for the disciplinary infraction is invalid, thereby
affecting the duration of Pugh’s confinement. Accordingly,
regardless whether the district court erred in determining that
Pugh’s claims for relief were precluded based on his transfer to
a different prison unit, Heck bars the instant suit since Pugh
has not shown that his disciplinary case has been reversed,
expunged, or declared invalid. Heck, 512 U.S. at 486-87; see
also Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998)(en
banc) (prisoner may not, in a 42 U.S.C. § 1983 action, challenge
the fact or duration of his confinement or recover good-time
credits lost in a prison disciplinary proceeding). Accordingly,
Pugh’s appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
Pugh is cautioned that the district court’s dismissal of his
42 U.S.C. § 1983 complaint as frivolous, and this court’s
dismissal of the appeal as frivolous, both count as “strikes”
pursuant to 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Pugh is advised 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
No. 03-10094
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detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).