United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 12, 2006
Charles R. Fulbruge III
Clerk
No. 06-60118
Conference Calendar
SHAWN BURTON,
Plaintiff-Appellant,
versus
CITY OF RIDGELAND MISSISSIPPI; DETECTIVE FRANK DILLARD;
OFFICER MICHAEL JAMES MAGAYHEE; COMMAND SERGEANTS JOHN DOE;
DIRECTOR OF INTERNAL AFFAIRS JOHN DOE; CHIEF OF POLICE JOHN
DOE; CITY MANAGER JOHN DOE; WITNESS ANITA WITTINGTON; CHIEF,
CITY OF RIDGELAND POLICE DEPARTMENT; CITY OF RIDGELAND POLICE
DEPARTMENT; CIVIL SERVICE COMMISSION, City of Ridgeland Police
Department; COMMAND SERGEANTS, City of Ridgeland Police
Department; DIRECTOR OF INTERNAL AFFAIRS DIVISION; MUNICIPLE
CORPORATION, organized under and pursuant to the Laws of the
State of Mississippi,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:05-CV-293
--------------------
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Shawn Burton, federal prisoner # 05736-043, appeals the
dismissal of his civil rights lawsuit for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii). As the district court
explained, Burton’s claims that the defendants conspired to
*
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this opinion should not be published and is not precedent except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. 06-60118
-2-
violate his constitutional rights in obtaining his state court
conviction are barred by Heck v. Humphrey, 512 U.S. 477, 487
(1994), which held that a prisoner’s lawsuit is barred whenever a
judgment in the prisoner’s favor would necessarily imply the
invalidity of his conviction. Burton argues that the district
court erred in dismissing his complaint with prejudice. In Boyd
v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994), however, we
squarely held that it was not error to dismiss a complaint
pursuant to Heck with prejudice.
This appeal is without arguable merit and is thus frivolous.
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because
the appeal is frivolous, it is dismissed. 5TH CIR. R. 42.2.
We caution Burton that both the district court’s and this
court’s dismissals count as strikes for purposes of 28 U.S.C. §
1915(g). Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Once Burton 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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.