United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10070
Conference Calendar
JOHN BROWN LEWIS, IV,
Plaintiff-Appellant,
versus
NFN GREEN; NFN DAY; JANE DOE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CV-318-BG
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
John Brown Lewis, IV, Texas prisoner # 1012766, appeals from
the dismissal of his 42 U.S.C. § 1983 lawsuit with prejudice as
frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1),
and 42 U.S.C. § 1997e(c)(1)-(2). On appeal, Lewis repeats his
underlying constitutional claim. The district court correctly
held that Lewis’s claim is barred by Heck v. Humphrey, 512 U.S.
477, 486-87 (1994), as well as under the doctrines of collateral
estoppel and res judicata. See Allen v. McCurry, 449 U.S. 90,
*
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this opinion should not be published and is not precedent except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. 04-10070
-2-
95-96, 104-05 (1980). Accordingly, Lewis’s complaint was
properly dismissed as frivolous. See Ruiz v. United States, 160
F.3d 273, 275 (5th Cir. 1998); Martin v. Scott, 156 F.3d 578, 580
(5th Cir. 1998).
Lewis’s 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. See 5TH CIR.
R. 42.2. The dismissal of this appeal as frivolous counts as a
“strike” for purposes of 28 U.S.C. § 1915(g), as does the
district court’s dismissal. See Adepegba v. Hammons, 103 F.3d
383, 385-87 (5th Cir. 1996). We warn Lewis 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.
See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; STRIKE WARNING ISSUED.