United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-20421
Conference Calendar
CHARLES LEMAN GERMAN,
Plaintiff-Appellant,
versus
CARLOTTA BAKER; RICARDO PENA; JOHN DOE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CV-3713
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Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Charles Leman German, Texas prisoner # 500319, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). He argues
that the district court erred in dismissing his complaint
pursuant to Heck v. Humphrey, 512 U.S. 477, 487 (1994). Because
German’s claims challenged the validity of his parole revocation
and sentence, a favorable ruling on German’s claims would call
into question the validity of the revocation of his parole and
*
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this opinion should not be published and is not precedent except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. 04-20421
-2-
sentence. Therefore, the district court did not err in
dismissing German’s complaint as barred by Heck. See Littles v.
Bd. of Pardons and Paroles Div., 68 F.2d 122, 123 (5th Cir.
1995); McGrew v. Texas Bd. of Pardons and Paroles, 47 F.3d 158,
161 (5th Cir. 1995).
German argues that the district court abused its discretion
in denying his FED. R. CIV. P. 59(e) motion. For the same reasons
that the district court did not err in dismissing German’s
complaint pursuant to Heck, the district court did not abuse its
discretion in denying German’s Rule 59(e) motion. See Midland
West Corp. v. FDIC, 911 F.2d 1141, 1145 (5th Cir. 1990).
German argues that the district court erred in denying his
request to stay this action pending a decision in his federal
habeas proceeding. Because German’s claims are not yet
cognizable, the district court did not err in dismissing his
complaint rather than staying it pending a decision in his
federal habeas proceeding. See Heck, 512 U.S. at 487.
German’s appeal is without merit and is DISMISSED as
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2. The dismissal of German’s appeal and the
district court’s dismissal of German’s complaint both count as
strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). German is
cautioned that once he accumulates three strikes, he may not
proceed in forma pauperis in any civil action or appeal filed
No. 04-20421
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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; SANCTION WARNING ISSUED.