Stephen Norwood v. O'Hare, et al

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UNPUBLISHED OPINION FILED. [10-20449 Dismissed as Frivolous] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 01/07/2011 [10-20449]

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Stephen Norwood v.Case: 10-20449 O'Hare, et al Document: 00511325110 Page: 1 Date Filed: 12/17/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-20449 S u m m a r y Calendar December 17, 2010 Lyle W. Cayce Clerk S T E P H E N WAYNE NORWOOD, P la in t if f -A p p e lla n t v. N F N O'HARE, Warden; NFN WATSON, Major; NFN LANGLEY, Major; NFN B A G G E T T , Captain; NFN GRISSOM, Sergeant; NFN KING, 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 Southern District of Texas U S D C No. 4:10-CV-2197 B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* S t e p h e n Wayne Norwood, Texas prisoner # 601001, appeals the dismissal o f his 42 U.S.C. 1983 action as frivolous. Norwood contends that he is being h e ld in involuntary servitude. He argues that his state parole revocation p r o c e e d in g s violated his due process rights, rendering his incarceration in state p r is o n illegal. According to Norwood, this illegal incarceration amounts to in v o lu n t a r y servitude in violation of the 13th Amendment. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20449 Document: 00511325110 Page: 2 Date Filed: 12/17/2010 No. 10-20449 A district court must sua sponte dismiss a prisoner's IFP complaint if the a c t io n is malicious or frivolous, fails to state a claim, or seeks monetary relief fr o m a defendant who is immune. 28 U.S.C. 1915(e)(2)(B). A claim may be d is m is s e d as frivolous if it does not have an arguable basis in fact or law. Geiger v . Jowers, 404 F.3d 371, 373 (5th Cir. 2005). T h e district court found no 13th Amendment violation; we dispose of N o r w o o d 's appeal on another ground. See Sojourner T. v. Edwards, 974 F.2d 27, 3 0 (5th Cir. 1992). Norwood seeks relief based on the alleged unconstitutionality o f his parole revocation; a grant of relief would necessarily undermine the v a lid it y of Norwood's revocation proceeding. Pursuant to Heck v. Humphrey, 512 U .S . 477 (1994), he has no cause of action for damages until he can demonstrate t h a t the parole revocation decision "has been reversed, expunged, set aside, or c a lle d into question." Littles v. Bd. of Pardons and Paroles Div., 68 F.3d 122, 123 (5 t h Cir. 1995). Norwood has not done so. N o r w o o d further argues that the district court erred by failing to allow h im to amend his complaint before dismissing it was frivolous. Norwood could n o t have overcome the Heck bar with an amended complaint; the district court n e e d not have allowed him an opportunity to amend. Cf. Eason v. Thaler, 14 F .3 d 8, 9 (5th Cir. 1994) (stating that district court generally errs when it d is m is s e s a complaint as frivolous without giving the plaintiff an opportunity to a m e n d the complaint when it appears that a more specific pleading might r e m e d y the insufficient factual allegations). N o r w o o d 's appeal is dismissed as frivolous. See 5TH CIR. R. 42.2. The d is t r ic t court's dismissal of Norwood's action as frivolous counts as a strike u n d e r 28 U.S.C. 1915(g), and this court's dismissal of his appeal counts as a s e c o n d strike. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). A d iffe r e n t district court previously dismissed another of Norwood's 1983 actions c h a lle n g in g his revocation as frivolous because he had failed to show that his r e v o c a t io n had been reversed, expunged, set aside, or called into question. 2 Case: 10-20449 Document: 00511325110 Page: 3 Date Filed: 12/17/2010 No. 10-20449 N o r w o o d v. Texas Bd. of Pardons and Paroles, No. 7:07-CV-017-R (N.D. Tex. A u g . 7, 2007). He therefore has accumulated three strikes and may not proceed in forma pauperis in any civil action or appeal while he is incarcerated or d e t a in e d in any facility unless he is under imminent danger of serious physical in ju r y . See 1915(g). A P P E A L DISMISSED. 28 U.S.C. 1915(g) BAR IMPOSED. 3

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