Gary Thomas v. Kathy Jackson, et al
UNPUBLISHED OPINION FILED. [12-60518 Dismissed as Frivolous] Judge: JES , Judge: ECP , Judge: SAH Mandate pull date is 04/24/2013 [12-60518]
Date Filed: 04/03/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
April 3, 2013
Lyle W. Cayce
KATHY KING JACKSON, Judge; AMONDA GALLE; TANYA HASBROUCH;
S.D. POROS, Clerk, Jackson County,
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:12-CV-78
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
Gary Thomas, Mississippi prisoner # 28483, appeals the dismissal of his
in forma pauperis (“IFP”), pro se complaint, which raised claims pursuant to 42
U.S.C. § 1983 and 28 U.S.C. § 2254. The district court dismissed the § 1983
claims for failure to state a claim and noted a 28 U.S.C. § 1915(g) strike for the
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 04/03/2013
dismissal. The court dismissed the § 2254 claims without prejudice for failure
to exhaust. On appeal, Thomas argues that his claim that his probation was
erroneously revoked for misidentification is a cognizable § 1983 claim.
Because Thomas’s complaint sought monetary damages and immediate
release, the district court properly construed it as raising both § 2254 claims and
§ 1983 claims and properly analyzed both types. See Serio v. Members of La.
State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987); Preiser v. Rodriguez,
411 U.S. 475, 494, 499-500 (1973).
Thomas has abandoned, by failing to
challenge, the dismissal of his § 2254 claims. See Yohey v. Collins, 985 F.2d 222,
225 (5th Cir. 1993). Regarding his § 1983 claims, Thomas’s assertion of false
imprisonment implicates the validity of his probation revocation. He has failed
to establish that the probation revocation has been reversed, expunged, declared
invalid, or called into question by a federal court’s issuance of a writ of habeas
corpus, so his claims are barred pursuant to Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). See McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 161
(5th Cir. 1995).
Thomas’s appeal is without arguable merit and thus is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Therefore, it is DISMISSED.
See 5TH CIR. R. 42.2. This dismissal counts as a strike under § 1915(g), as does
the district court’s dismissal of the complaint. See § 1915(g); Patton v. Jefferson
Corr. Ctr., 136 F.3d 458, 463-64 (5th Cir. 1998); Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996).
We have also dismissed as frivolous Thomas’s appeal in Thomas v. Epps,
No. 12-60566. Our dismissal of that appeal counts as a strike, and the district
court’s dismissal of the complaint that is the subject of that appeal also counts
as a strike. Accordingly, Thomas has accumulated more than three strikes and
he is now barred from proceeding IFP in any civil action or appeal filed while he
is incarcerated or detained in any facility unless he is under imminent danger
of serious physical injury. See § 1915(g).
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