United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2003
Charles R. Fulbruge III
Clerk
No. 03-40203
Conference Calendar
RICHARD ZANE HILL,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CV-517
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Richard Zane Hill, Texas prisoner # 680838, appeals from the
district court’s dismissal of his 42 U.S.C. § 1983 complaint for
failure to state a claim. Hill is seeking a mandatory-release
date and contends that he has adequately stated a violation of
his Eighth and Fourteenth Amendment rights.
“[W]hen a state prisoner is challenging the very fact or
duration of his physical imprisonment, and the relief he seeks is
*
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that this opinion should not be published and is not precedent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. 03-40203
-2-
a determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal remedy
is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475,
500 (1973). Thus, Hill’s complaint did not state a cognizable
claim for relief under 42 U.S.C. § 1983. See 28 U.S.C.
§ 1915A(b)(1); see also Berry v. Brady, 192 F.3d 504, 507 (5th
Cir. 1999).
This appeal is without arguable merit and is frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because
the appeal is frivolous, it is DISMISSED. 5TH CIR. R. 42.2.
The district court’s dismissal and this court’s dismissal
count as two strikes for purposes of 28 U.S.C. § 1915(g). See
generally Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Hill is WARNED that if he accumulates three strikes 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. See 28
U.S.C. § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) SANCTIONS WARNING
ISSUED.