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. 04-20461
Conference Calendar
ROBERT JEROME NEWSOME,
Plaintiff-Appellant,
versus
TEXAS BOARD OF PARDON & PAROLE;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
EXECUTIVE DIRECTOR,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-240
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Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Robert Jerome Newsome, Texas prisoner # 650726, appeals
the district court’s 28 U.S.C. § 1915A dismissal as frivolous of
his 42 U.S.C. § 1983 complaint, asserting that the defendants
violated his constitutional rights in determining his parole
eligibility and in calculating his sentence. We review a
28 U.S.C. § 1915A dismissal as frivolous for an abuse of
*
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this opinion should not be published and is not precedent except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. 04-20461
-2-
discretion. See Martin v. Scott, 156 F.3d 578, 580 (5th Cir.
1998).
Newsome contends that he is not challenging the fact or
duration of his confinement and that the district court erred in
determining that his suit is barred by Heck v. Humphrey, 512 U.S.
477 (1994). Contrary to Newsome’s contentions, he is challenging
his continued confinement. Because Newsome brought his claims in
a 42 U.S.C. § 1983 action and because success in this 42 U.S.C.
§ 1983 action would necessarily imply the invalidity of his
continued confinement, the claims are barred by Heck, and the
district court did not abuse its discretion in dismissing the
suit as frivolous. See McGrew v. Texas Bd. of Pardons & Paroles,
47 F.3d 158, 161 (5th Cir. 1995). Newsome’s argument that the
district court erred in denying his motions for a default
judgment is meritless. See 28 U.S.C. § 1915A.
Accordingly, the judgment is AFFIRMED. The district court’s
dismissal of Newsome’s complaint counts as a strike for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). Newsome is cautioned that once 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).
AFFIRMED; SANCTION WARNING ISSUED.