United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-40325
Summary Calendar
PATRICK JEROID JONES,
Plaintiff-Appellant,
versus
JIM WHITE; Detective STEVE SHELLEY; Detective KELLEY
BANKS; FNU WISER, Sergeant; Officer TOMMIE MCELHENEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:02-CV-157
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Patrick Jeroid Jones, Texas prisoner # 935352, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint
under Heck v. Humphrey, 512 U.S. 477 (1994). In his complaint,
Jones alleged that the defendants conducted an illegal search
resulting in the seizure of evidence used to secure his
conviction.
In order to recover damages for harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a 42
*
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this opinion should not be published and is not precedent except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. 05-40325
-2-
U.S.C. § 1983 plaintiff must prove that the validity of the
conviction or sentence has been called into question or that the
conviction and sentence has been reversed or otherwise set aside.
Heck, 512 U.S. at 486-87. If a favorable judgment on an illegal
search claim would necessarily imply the invalidity of the
plaintiff’s conviction, his 42 U.S.C. § 1983 claims must be
dismissed pursuant to Heck. See Jackson v. Vannoy, 49 F.3d 175,
177 (5th Cir. 1995).
Jones’s allegations do not clearly reflect whether a
favorable judgment on his illegal arrest claim would necessarily
imply the invalidity of his conviction. Nevertheless, Jones does
not allege an actual, compensable injury under Heck for purposes
of § 1983 other than the injury of conviction. See id. The
district court therefore did not err by dismissing the complaint,
but the judgment should be modified to reflect a dismissal
without prejudice. See Price v. City of San Antonio, 431 F.3d
890, 895 (5th Cir. 2005).
Jones also argues that the district court erred in denying
his motion for default judgment. The record shows that the
defendants properly complied with the court’s order. There is no
merit to this argument.
The district court’s dismissal of Jones’s § 1983 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). Jones
is CAUTIONED that if he accumulates three strikes, he will no
No. 05-40325
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longer be allowed to proceed in forma pauperis in any civil
action or appeal filed while he is detained or incarcerated in
any facility unless he is under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
Accordingly, the judgment of the district court is AFFIRMED
as modified; all outstanding motions are DENIED.