James Leggett v. U. S. Attorney General

Filing 511139352

James Leggett v. U. S. Attorney General

Doc. 511139352

Case: 09-20673

Document: 00511139352

Page: 1

Date Filed: 06/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20673 S u m m a r y Calendar June 11, 2010 Lyle W. Cayce Clerk

J A M E S LEGGETT, P la in t if f -A p p e lla n t v. U S ATTORNEY GENERAL, 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 U S D C No. 4:09-CV-812

B e fo r e HIGGINBOTHAM, CLEMENT and SOUTHWICK, Circuit Judges. PER CURIAM:* J a m e s Leggett seeks leave to proceed in forma pauperis (IFP) on appeal t o challenge the district court's dismissal of his civil rights complaint against the U n ite d States Attorney General. In order to obtain IFP status, Leggett must s h o w both that he is financially eligible and that he will present a nonfrivolous is s u e for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Leggett pleaded guilty to submitting a false claim for assistance to the F e d e r a l Emergency Management Agency (FEMA). He now argues that he was
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

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Case: 09-20673

Document: 00511139352 Page: 2 No. 09-20673

Date Filed: 06/11/2010

fa ls e ly accused and convicted.

The district court correctly concluded that

L e g g e t t's claims for damages based on a wrongful conviction may not be pursued u n t il his conviction is overturned, expunged, or otherwise invalidated. Heck v. H u m p h r e y , 512 U.S. 477, 487 (1994); Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1 9 9 4 ). Leggett does not address this aspect of the district court's ruling and has e f f e c t i v e ly abandoned it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1 9 9 3 ). L e g g e t t '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. We note t h a t because Leggett was incarcerated at the time he filed his complaint, the d is t r ic t court's dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g). We caution Leggett that if he is returned to prison and accumulates three s t r ik e s , he will not be permitted to proceed IFP in any civil action or appeal filed w h ile incarcerated or detained in any facility unless he is under imminent d a n g e r of serious physical injury. See § 1915(g). We further caution Leggett t h a t , as a non-prisoner, he is subject to sanctions for pursuing frivolous appeals. See Vinson v. Heckmann, 940 F.2d 114, 116 (5th Cir. 1991). I F P MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING IS S U E D .

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