United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 3, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40300
Summary Calendar
JERRY W. WILLIAMS,
Plaintiff-Appellant,
versus
UP MARTINEZ, Individually and in his official capacity as
Secretary of Housing & Urban Development (HUD); WILLIAM
DALEY, General Counsel; YOUNG IMPLEMENTATION OFFICE
DIRECTOR, (YIO); CARMELO MELENDEZ, Individually and in his
official capacity; DAVID PILLEGGI, Senior Investigator;
OFFICE OF INSPECTOR GENERAL, (OIG); DAVE HENDERSON, Assistant
United States Attorney for The Department of Justice (AUSA);
UNIDENTIFIED PARTY, (DOJ) In his individual and official
capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-238
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Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Jerry W. Williams, Texas inmate # 1103979, proceeding pro
se and in forma pauperis (“IFP”), appeals the district court’s 28
U.S.C. § 1915(e) dismissal as frivolous and for failure to state a
*
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that this opinion should not be published and is not precedent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. 03-40300
-2-
claim of his complaint filed pursuant to Bivens v. Six Unknown
Named Agents, 403 U.S. 388, 389 (1971). Williams sought damages
for the defendants’ alleged conspiracy, perjury, unlawful search,
prosecutorial misconduct, and selective prosecution that resulted
in Williams’ criminal indictment and conviction.
Williams contends that he is not challenging his
conviction and that his claims are not barred by Heck v. Humphrey,
512 U.S. 477 (1994). In addition, he asserts that the district
court should have allowed him to amend his complaint prior to
dismissal.
We review de novo the district court’s dismissal of an
IFP complaint for failure to state a claim. Black v. Warren, 134
F.3d 732, 734 (5th Cir. 1998). In our review, we consider that all
of the plaintiff’s factual allegations are true, and we uphold the
dismissal only if it appears that no relief could be granted under
any set of facts that could be proved consistent with the
allegations. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.
1998). We review a dismissal of a complaint as frivolous for an
abuse of discretion. Black, 134 F.3d at 733.
As the district court determined, resolution of Williams’
claims would necessarily imply the invalidity of Williams’
conviction, and Heck, 512 U.S. at 486-87, mandates dismissal
because no cause of action accrues unless and until Williams can
show that he has had his conviction reversed, expunged, declared
invalid, or otherwise called into question by a writ of habeas
No. 03-40300
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corpus, 28 U.S.C. § 2254. See Stephenson v. Reno, 28 F.3d 26, 27-
28 (5th Cir. 1994). Because Williams’ cause of action has not yet
accrued, the district court did not abuse its discretion by
dismissing his complaint without amendment and further
clarification. Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994).
Williams’ appeal is without arguable merit, is frivolous
and is DISMISSED. 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The dismissal of this appeal and the
district court’s dismissal of Williams’ complaint count as strikes
under the Prison Litigation Reform Act. Adepegba v. Hammons, 103
F.3d 383, 387 (5th Cir. 1996). Williams is WARNED that if he
accumulates three “strikes” under 28 U.S.C. § 1915(g) he will not
be able to 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. 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED, SANCTION WARNING ISSUED.