IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 24, 2007
No. 06-41109
Conference Calendar Charles R. Fulbruge III
Clerk
TOMMY EARL HARRELL
Plaintiff-Appellant
v.
D MOONEYHAM; N WEBB; KELLI WARD
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:06-CV-211
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Tommy Earl Harrell, Texas prisoner # 1017089, appeals from the district
court’s dismissal with prejudice of his 42 U.S.C. § 1983 lawsuit as frivolous and
for failure to state a claim upon which relief may be granted. Harrell argues
that the district court erred in determining that he did not allege the deprivation
of a protected liberty interest. The district court properly held that Harrell’s
lawsuit was barred because he had not shown that his disciplinary conviction
*
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should not be published and is not precedent except under the limited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. 06-41109
had been expunged or reversed. See Edwards v. Balisok, 520 U.S. 641, 648
(1997); Clarke v. Stalder, 154 F.3d 186, 189-91 (5th Cir. 1998) (en banc).
Harrell’s appeal lacks arguable merit and therefore is dismissed as
frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). The district court’s dismissal of the § 1983 lawsuit and our dismissal of
this appeal count as two strikes for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Harrell is cautioned
that if he accumulates three strikes under § 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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
2