Parks v. Jordan

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
December 10, 2008
No. 07-31110
Conference Calendar Charles R. Fulbruge III
Clerk

LIONEL PARKS, SR

Plaintiff-Appellant

v.

E JORDAN, JR, District Attorney, Parish of Orleans; NEW ORLEANS CITY

Defendants-Appellees

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-3716

Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Lionel Parks, Sr., Louisiana prisoner # 067187, appeals the dismissal of
an in forma pauperis (IFP) civil rights complaint alleging that he is wrongfully
imprisoned because his conviction is invalid. The district court granted the
defendants’ FED. R. CIV. P. 12(b)(6) motion to dismiss because it determined that
Parks’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). We review

*
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should not be published and is not precedent except under the limited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. 07-31110

this determination de novo. See In re Katrina Canal Breaches Litigation, 495
F.3d 191, 205 (5th Cir. 2007), cert. denied, 128 S. Ct. 1230 (2008).
Parks’s claims concerning his conviction are barred by Heck because he
has failed to establish that the conviction has been reversed, expunged, or
otherwise invalidated. See Heck, 512 U.S. at 486-87. Thus, the 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 district court’s dismissal of the complaint for failure to state a claim
for relief and our dismissal of this appeal as frivolous count as strikes for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388
(5th Cir. 1996). Parks is warned that if he accumulates three strikes, he will be
barred from proceeding IFP 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.

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