Alejandro Martinez v. Charles Horsley, et al

Filing

UNPUBLISHED OPINION FILED. [10-10563 Dismissed as Frivolous] Judge: CDK , Judge: FPB , Judge: JWE. Mandate pull date is 12/03/2010 [10-10563]

Alejandro Martinez v. Charles Horsley, et al Case: 10-10563 Document: 00511291752

Page: 1 Date Filed: 11/12/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10563 S u m m a r y Calendar November 12, 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. C A P T A I N CHARLES R. HORSLEY, Captain, Preston E. Smith Unit; WESLEY L . SLOAN, Correctional Officer, Preston E. Smith Unit; TAMBRINA L. W R I G H T , Counsel Substitute, Preston E. Smith Unit, 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-244

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 and c o m m is s a r y and recreation privileges. He sought monetary damages as well as u n s p e c ifie d injunctive, declaratory, and prospective relief. The district court

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

Case: 10-10563 Document: 00511291752 Page: 2 Date Filed: 11/12/2010 No. 10-10563 d is m is s e d Martinez's suit as frivolous on the basis that it is barred under the d o c t r in e of Heck v. Humphrey, 512 U.S. 477 (1994). 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 artin ez's appeal in Case No. 10-10540. 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 US.C. § 1915(g) BAR IM P O S E D .

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