Case: 12-60566 Document: 00512196044 Page: 1 Date Filed: 04/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 3, 2013
No. 12-60566
Summary Calendar Lyle W. Cayce
Clerk
GARY LERON THOMAS,
Plaintiff-Appellant,
versus
CHRISTOPHER EPPS, Commissioner; JAMES HOLMAN, Superintendent,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:12-CV-263
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Gary Thomas, Mississippi prisoner # 28483, appeals the dismissal of his
in forma pauperis (“IFP”), pro se complaint, which raised claims pursuant to 42
U.S.C. § 1983 and 28 U.S.C. § 2254. The district court dismissed the § 1983
claims for failure to state a claim and noted a 28 U.S.C. § 1915(g) strike for the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-60566 Document: 00512196044 Page: 2 Date Filed: 04/03/2013
No. 12-60566
dismissal. The court dismissed the § 2254 claims without prejudice for failure to
exhaust. On appeal, Thomas argues that his claim that his probation was erron-
eously revoked for misidentification is a cognizable § 1983 claim.
Because Thomas’s complaint sought monetary damages and immediate
release, the district court correctly construed it as raising both § 2254 claims and
§ 1983 claims and properly analyzed both types. See Serio v. Members of La.
State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987); Preiser v. Rodriguez,
411 U.S. 475, 494, 499-500 (1973). Thomas has abandoned, by failing to chal-
lenge, the dismissal of his § 2254 claims. See Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993). Regarding his § 1983 claims, Thomas’s assertion of false impris-
onment implicates the validity of his probation revocation. He has failed to
establish that the probation revocation has been reversed, expunged, declared
invalid, or called into question by a federal court’s issuance of a writ of habeas
corpus, so his claims are barred pursuant to Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). See McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 161
(5th Cir. 1995).
Thomas’s appeal is without arguable merit and thus is frivolous. See How-
ard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Therefore, it is DISMISSED.
See 5TH CIR. R. 42.2. This dismissal counts as a strike under § 1915(g), as does
the district court’s dismissal of the complaint. See § 1915(g); Patton v. Jefferson
Corr. Ctr., 136 F.3d 458, 463-64 (5th Cir. 1998); Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996).
We have also dismissed as frivolous Thomas’s appeal in Thomas v. Jack-
son, No. 12-60518. Our dismissal of that appeal counts as a strike, and the dis-
missal of the complaint that is the subject of that appeal also counts as a strike.
Accordingly, Thomas has accumulated more than three strikes and is now
barred from proceeding IFP in any civil action or appeal filed while he is incar-
cerated or detained in any facility unless he is under imminent danger of serious
physical injury. See § 1915(g).
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