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. 04-40831
Conference Calendar
C. ELIJAH HAKEEM MUHAMMAD, also known as Christopher Hijrah
Mitchell,
Plaintiff-Appellant,
versus
LARRY WESTON, Individually & In His Official Capacity as an
Officer; ENRIQUE ORTIZ, Individually & In His Official Capacity
as Unit Team Case Manager; TAMARA MISCHEL, Individually & In Her
Official Capacity as Psychologist; C. LOHMANN, Individually & In
His Official Capacity as a Psychologist,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-299-HC-ESH
--------------------
Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
C. Elijah Hakeem Muhammad, federal prisoner #02791-088,
appeals the district court’s dismissal of his Bivens** action.
Muhammad argues that the district court erred by dismissing his
complaint without giving him the opportunity to amend it. He
*
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this opinion should not be published and is not precedent except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.
**
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
No. 04-40831
-2-
further asserts that his claims against Larry Weston and Enrique
Ortiz were not barred by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), because his disciplinary conviction was expunged. He
additionally contends that he had a protected liberty interest in
the good-time credits that he lost because of the disciplinary
conviction.
Muhammad’s complaint and accompanying factual allegations
were extensive and consisted of a total of 70 pages. While he
alleged that he exhausted his administrative remedies against
Weston and Ortiz, he did not allege that he exhausted his
administrative remedies against Dr. C. Lohmann and Dr. Tamara
Mischel. His complaint showed that his disciplinary conviction
had not been overturned or otherwise called into question. The
district court dismissed the complaint over two years after
Muhammad filed it; Muhammad had ample time to amend it.
Accordingly, the district court did not err by dismissing
Muhammad’s complaint without expressly giving him an opportunity
to amend it. See Jones v. Greninger, 188 F.3d 322, 327 (5th Cir.
1999).
Muhammad’s claims against Weston and Ortiz, if successful,
would undermine the validity of his disciplinary conviction.
While the disciplinary conviction was erroneously expunged, it
was reinstated once the error was discovered. Thus, Muhammad’s
disciplinary conviction was “still outstanding” and his claims
for damages and declaratory relief were barred by Heck. See
No. 04-40831
-3-
Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996); Edwards v.
Balisok, 520 U.S. 641, 648 (1997). To the extent that Muhammad
sought the expunction of his disciplinary conviction and the
return of his good-time credits, his claims were cognizable only
in a habeas corpus action, not in a Bivens action. See Spina v.
Aaron, 821 F.2d 1126, 1128 (5th Cir. 1987). We need not reach
Muhammad’s argument that he had a protected liberty interest in
his good-time credits because that argument goes only to the
merits of his incognizable challenge to his disciplinary
conviction.
Muhammad’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). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
We warn Muhammad 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; SANCTION WARNING ISSUED.