Lewis v. Green

United States Court of Appeals
Fifth Circuit

FILED
IN THE UNITED STATES COURT OF APPEALS June 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-10070
Conference Calendar

JOHN BROWN LEWIS, IV,

Plaintiff-Appellant,

versus

NFN GREEN; NFN DAY; JANE DOE,

Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CV-318-BG
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

John Brown Lewis, IV, Texas prisoner # 1012766, appeals from

the dismissal of his 42 U.S.C. § 1983 lawsuit with prejudice as

frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1),

and 42 U.S.C. § 1997e(c)(1)-(2). On appeal, Lewis repeats his

underlying constitutional claim. The district court correctly

held that Lewis’s claim is barred by Heck v. Humphrey, 512 U.S.

477, 486-87 (1994), as well as under the doctrines of collateral

estoppel and res judicata. See Allen v. McCurry, 449 U.S. 90,

*
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this opinion should not be published and is not precedent except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. 04-10070
-2-

95-96, 104-05 (1980). Accordingly, Lewis’s complaint was

properly dismissed as frivolous. See Ruiz v. United States, 160

F.3d 273, 275 (5th Cir. 1998); Martin v. Scott, 156 F.3d 578, 580

(5th Cir. 1998).

Lewis’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. See 5TH CIR.

R. 42.2. The dismissal of this appeal as frivolous counts as a

“strike” for purposes of 28 U.S.C. § 1915(g), as does the

district court’s dismissal. See Adepegba v. Hammons, 103 F.3d

383, 385-87 (5th Cir. 1996). We warn Lewis that if he

accumulates three “strikes” under 28 U.S.C. § 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 28 U.S.C. § 1915(g).

APPEAL DISMISSED; STRIKE WARNING ISSUED.