United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 1, 2005
Charles R. Fulbruge III
Clerk
No. 05-20137
Summary Calendar
GERALD ALLEN PERRY,
Plaintiff-Appellant,
versus
KKK JOHN B. HOLMES, Former District Attorney of
Harris County; STEVE BALDASSANO, Former Assistant
District Attorney of Harris County; BOYOL SMITH,
Sergeant; K. R. WILLIAMSON, Sergeant,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-3865
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
In 2004, Gerald Allen Perry, a Texas prisoner (# 644896)
serving a 45-year prison sentence for a 1993 jury-trial
conviction of aggravated robbery, filed the instant 42 U.S.C.
§ 1983 civil rights action challenging that conviction and
sentence as being the product of bad-faith prosecution and false
imprisonment. He alleged that the defendants produced a
fraudulently incomplete affidavit to support his arrest warrant.
*
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that this opinion should not be published and is not precedent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. 05-20137
-2-
Perry now appeals the district court’s dismissal of his complaint
as frivolous and for failure to state a claim, pursuant to 28
U.S.C. § 1915(e)(2)(B), as barred by the applicable two-year
Texas limitations statute for personal injury actions.
The district court erred in concluding that Perry’s
complaint was time-barred. Because Perry continues to serve the
prison sentence for the conviction he is effectively attacking,
his claims have not yet accrued for limitations purposes, under
the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). See
Castellano v. Fragozo, 352 F.3d 939, 959 (5th Cir. 2003), cert.
denied, 125 S. Ct. 31 (2004). This court may affirm on any
ground, however, that is apparent from the record. Sojourner T
v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992). In the instant
case, the Heck doctrine itself is such a ground. “[I]n order to
recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,” a 42
U.S.C. § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal or otherwise
invalidated by official action. Heck, 512 U.S. at 486-87
(footnote omitted). If a judgment in favor of the plaintiff
“would necessarily imply the invalidity of his conviction or
sentence, the complaint must be dismissed unless the plaintiff
can demonstrate that conviction or sentence has already been
invalidated.” Id. at 487. Because Perry’s malicious-prosecution
No. 05-20137
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and false-imprisonment claims directly implicate the validity of
his conviction and confinement, his claims are not cognizable
under 42 U.S.C. § 1983. See id.
Although the district court’s dismissal was based on an
erroneous legal basis, the court’s underlying conclusion that
Perry’s complaint was frivolous was correct. See Taylor v.
Johnson, 257 F.3d 470, 472 (5th Cir. 2001). Perry’s appeal is
without arguable merit and is frivolous. See Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). Accordingly, the appeal is
DISMISSED. See 5TH CIR. 42.2.
The dismissal of Perry’s complaint as frivolous and of this
appeal as frivolous count as “strikes” for purposes of the three-
strikes provision, 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996). Perry is cautioned that if he
accumulates three strikes, he will not be permitted 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).
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.