IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 24, 2007
No. 06-51605
Conference Calendar Charles R. Fulbruge III
Clerk
KENNETH RAY BROWN
Plaintiff-Appellant
v.
OFFICE OF THE CLERK OF THE 10TH SUPREME COURT OF APPEALS
OF TEXAS AT WACO, TEXAS, SHARRI ROESSLER
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:06-CV-74
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Kenneth Ray Brown, Texas prisoner # 334618, appeals the denial of his
42 U.S.C. § 1983 complaint for failure to state a cause of action. He argues that
the Office of the Clerk of the 10th Supreme Court of Texas at Waco, Texas,
violated his due process rights by failing to comply with its duty under Texas law
to notify Brown’s appellate counsel of record that his case had been remanded.
*
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should not be published and is not precedent except under the limited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. 06-51605
However, because Brown’s claims necessarily implicate the validity of his
conviction, and because Brown has not shown that his conviction has been
reversed or expunged, the district court properly concluded that his claim was
barred under Heck v. Humphrey, 512 U.S. 477 (1994).
The district court dismissed a prior civil rights case filed by Brown as
frivolous. See Brown v. Wallace, No. H-03-0827 (S.D. Tex. Jan. 25, 2005). That
dismissal and the district court’s dismissal of this civil rights claim as frivolous
count as two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Brown 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).
AFFIRMED; SANCTION WARNING ISSUED.
2