Martinez v. City of Donna

Filing

Case: 08-41050

Document: 00511201984

Page: 1

Date Filed: 08/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-41050 S u m m a r y Calendar August 12, 2010 Lyle W. Cayce Clerk

R O B I N S O N MARTINEZ, P la in t if f -A p p e lla n t , v. C I T Y OF DONNA, D e fe n d a n t -A p p e lle e .

A p p e a l from the United States District Court fo r the Southern District of Texas, McAllen Division U S D C No. 7:07-CV-256

B e fo r e KING, BENAVIDES and ELROD, Circuit Judges. P E R CURIAM:* R o b in s o n Martinez, Texas prisoner # 1466103, seeks leave to proceed in fo r m a pauperis (IFP) on appeal to challenge the district court's dismissal of his c iv il rights complaint against the City of Donna and numerous police officers. In order to obtain IFP status, Martinez must show both that he is financially e lig ib le and that he will present a nonfrivolous issue for appeal. See Carson v. P o lle y , 689 F.2d 562, 586 (5th Cir. 1982).

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-41050

Document: 00511201984 Page: 2 No. 08-41050

Date Filed: 08/12/2010

M a r t in e z is currently serving a 10-year sentence following his conviction fo r manslaughter which stemmed from a fatal automobile accident. He now a r g u e s that he is the victim of false arrest and malicious prosecution. The d is t r ic t court correctly concluded that Martinez's claims for damages based on a wrongful conviction may not be pursued until his conviction is overturned, e x p u n g e d , or otherwise invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1 9 9 4 ); Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). Martinez does not a d d r e s s this aspect of the district court's ruling and has effectively abandoned it . See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). M a r t in e z 's appeal lacks arguable merit and we dismiss it as frivolous. See H o w a r d v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2. The d is t r ic t court's dismissal of Martinez's complaint and our dismissal of this appeal a s frivolous each count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. H a m m o n s , 103 F.3d 383, 387-88 (5th Cir. 1996). We caution Martinez that if he a c c u m u la t e s three strikes, he will not be permitted to proceed IFP in any civil a c t io n or appeal filed while incarcerated or detained in any facility unless he is u n d e r imminent danger of serious physical injury. See § 1915(g). IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING IS S U E D .

2