United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 4, 2004
Charles R. Fulbruge III
Clerk
No. 04-40032
Summary Calendar
BONNIE BURNETTE ERWIN,
Plaintiff-Appellant,
versus
J.B. SMITH, Sheriff, Smith County; JOHN
BEDDINGFIELD, Chief Deputy Sheriff, Smith
County, Texas; BOBBY GARMON, Chief Deputy
Sheriff, Smith County, Texas; JACK SKEEN, JR.,
District Attorney, Smith County, Texas; RICHARD
L. MOORE, Chief Prosecuting Attorney, Smith
County, Texas; ET AL.,
Defendants-Appellees.
--------------------
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-CV-374
--------------------
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Bonnie Burnette Erwin, currently federal prisoner # 14289-
077, appeals the district court’s dismissal as frivolous of his
civil rights action brought pursuant to 42 U.S.C. § 1983 and
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971). In his complaint, Erwin asserted that
*
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this opinion should not be published and is not precedent except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. 04-40032
-2-
various state and federal employees engaged in a racially
motivated conspiracy that resulted in his state conviction and
death sentence for the kidnaping and murder of Patrick Brooks
(which has since been overturned) and federal convictions for
various drug, weapon, and criminal enterprise convictions arising
from the same activity. The district court concluded that
Erwin’s challenges to his state conviction were untimely and that
his challenges to the federal conviction were barred by Heck v.
Humphrey, 512 U.S. 477 (1994).
Erwin asserts that because he is an indigent prisoner, the
district court erred in denying him leave to proceed in forma
pauperis (IFP) in the district court and on appeal. The district
court granted Erwin IFP status in both instances. Although the
court assessed an initial partial filing fee in both cases, such
actions are authorized by statute. See 28 U.S.C. § 1915(b)(1).
Erwin asserts that the district court erred in denying his
motion for appointment of counsel. He has not shown
extraordinary circumstances warranting such an appointment.
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Erwin contends that the district court erred in dismissing
his complaint without serving the defendants and without allowing
him an opportunity to amend his complaint. The district court
was authorized to dismiss the complaint “at any time” if it
determined that Erwin had failed to state a claim. 28 U.S.C.
§ 1915(e)(2). Moreover, Erwin has not established that his
No. 04-40032
-3-
factual allegations could have been remedied through amendment,
so the district court did not abuse its discretion in dismissing
the case without providing Erwin an opportunity to amend. See
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
Erwin has not established that his federal convictions have
been overturned or invalidated or that his challenges to those
convictions would necessarily call into question the validity of
his federal convictions. See Heck, 512 U.S. at 484-87.
Likewise, Erwin has not established that his challenges to his
overturned state conviction were not barred by the applicable
two-year limitations period. See Owens v. Okure, 488 U.S. 235,
249-50 (1989); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West
2004). The district court therefore did not abuse its discretion
in dismissing Erwin’s complaint as frivolous. See Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Erwin’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, we DISMISS Erwin’s appeal as frivolous. See
5TH CIR. R. 42.2. This dismissal of his appeal as frivolous and
the district court’s dismissal of his complaint as frivolous
constitute two “strikes” for the purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). If
Erwin obtains three “strikes,” he will not be able to proceed IFP
in any civil action or appeal filed while he is incarcerated or
No. 04-40032
-4-
detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
Erwin has moved for appointment of counsel on appeal.
Because he has not shown extraordinary circumstances warranting
such an appointment, the motion is DENIED. See Ulmer, 691 F.2d
at 212. Erwin’s motion for immediate release pending his appeal
is likewise DENIED.
APPEAL DISMISSED; MOTIONS DENIED.