Alejandro Martinez v. Roberto Guitierrez, et al

Filing

UNPUBLISHED OPINION FILED. [10-10540 Dismissed as frivolous] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 12/01/2010 [10-10540]

Alejandro Martinez v. Roberto Guitierrez, et al Case: 10-10540 Document: 00511290408

Page: 1 Date Filed: 11/10/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10540 S u m m a r y Calendar November 10, 2010 Lyle W. Cayce Clerk

A L E J A N D R O ALBERTO MARTINEZ, P la in t if f -A p p e lla n t v. R O B E R T O R. GUITIERREZ, Captain; EMILIANO J. GONZALES, Sargeant; B Y R O N K. BERRY, Correctional Officer; DEBRA W. DORMAN, Counsel S u b s titu te , D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 5:09-CV-243

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* A le ja n d r o Alberto Martinez, Texas prisoner # 1362767, filed a 42 U.S.C. § 1983 complaint against various prison officials and prison counsel challenging a disciplinary proceeding against him resulting in a loss of good time credits, loss o f commissary and recreation privileges, and a reduction in line status. He s o u g h t monetary damages as well as unspecified injunctive, declaratory, and

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10540 Document: 00511290408 Page: 2 Date Filed: 11/10/2010 No. 10-10540 p r o s p e c t iv e relief. The district court dismissed Martinez's suit as frivolous on t h e basis that it is barred under the doctrine of Heck v. Humphrey, 512 U.S. 477 (1 9 9 4 ). Martinez now appeals. A prisoner may not seek monetary damages or declaratory relief under § 1983 based on the procedures used in a disciplinary conviction until that d is c ip lin a r y conviction has been reversed, expunged, or otherwise declared in v a lid if a favorable judgment would necessarily imply the invalidity of the d is c ip lin a r y conviction. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en b a n c ); Heck, 512 U.S. at 486-87. A prisoner also may not recover good time c r e d it s in a § 1983 suit. Clarke, 154 F.3d at 189. Martinez has failed to specify w h a t prospective relief he seeks. I n light of the foregoing, Martinez's appeal is frivolous. See Howard v. K in g , 707 F.2d 215, 220 (5th Cir. 1983). Thus, it is dismissed. See 5TH CIR. R . 42.2. The dismissal of this appeal as frivolous counts as a strike for purposes o f the in forma pauperis (IFP) provisions of 28 U.S.C. § 1915(g), as does the d is t r ic t court's dismissal of Martinez's complaint. See Adepegba v. Hammons, 1 0 3 F.3d 383, 387 (5th Cir. 1996). We have also dismissed as frivolous

M a r t in e z 's appeal in Case No. 10-10563. Accordingly, Martinez has accumulated m o r e than three strikes and is now barred from proceeding IFP in any civil a c t io n or appeal filed while he is incarcerated or detained in any facility unless h e is under imminent danger of serious physical injury. See § 1915(g).

A P P E A L DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR IM P O S E D .

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