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, 2006
Charles R. Fulbruge III
Clerk
No. 05-10405
Conference Calendar
ALFREDO ALVAREZ,
Plaintiff-Appellant,
versus
NFN ORTEGA, Detective, Forth Worth Police Department;
ROBERT RANGEL, Drug Enforcement Administration Agent;
TERRI MOORE, Assistant United States Attorney; NEIL
DURRANCE, Public Defender; KEVIN FITCHETT, Detective,
Fort Worth Police Department; PAUL GARTNER, C.D. Deputy
Chief; LIEUTENANT UNKNOWN,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CV-403-Y
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Alfredo Alvarez, federal prisoner # 30170-077, appeals the
dismissal of his Bivens** complaint and moves for appointment of
counsel. The district court held in pertinent part that
Alvarez’s claims were barred by Heck v. Humphrey, 512 U.S. 477,
*
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this opinion should not be published and is not precedent except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 Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
No. 05-10405
-2-
486 (1994). Alvarez has failed to brief this issue and therefore
has waived its review. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
Alvarez’s appeal is without arguable merit and is therefore
dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2. His motion for appointment of
counsel is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212
(5th Cir. 1982). The dismissal of his appeal as frivolous and
the district court’s dismissal of his complaint as frivolous and
for failure to state a claim 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). Alvarez is cautioned that if he
obtains three strikes, 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 § 1915(g).
APPEAL DISMISSED; APPOINTMENT OF COUNSEL DENIED; SANCTION
WARNING ISSUED.