Wheeler v. Spivey , 135 F. App'x 702 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-20832
Conference Calendar
CORNELIUS WHEELER,
Plaintiff-Appellant,
versus
Captain CHARLES T. SPIVEY, Captain Ellis Unit; ROBERT
D. TUCKER; JANET E. EBNER, Counsel Substitute,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-3631
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Cornelius Wheeler, Texas prisoner # 757968, appeals from the
dismissal of his 42 U.S.C. § 1983 suit pursuant to Heck v.
Humphrey, 512 U.S. 477, 489-90 (1994), for failure to state a
claim. Wheeler also moves for appointment of counsel. Wheeler
alleges that his disciplinary conviction has been invalidated and
that the application of Heck to prison disciplinary proceedings
is unconstitutional. We review the district court’s dismissal
de novo. Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
*
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this opinion should not be published and is not precedent except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.
No. 04-20832
-2-
Wheeler has not provided evidence in support of his
allegation that his disciplinary conviction has been overturned
or declared invalid, and we have held Heck applicable to prison
disciplinary proceedings. See Clarke v. Stalder, 154 F.3d 186,
189 (5th Cir. 1998) (en banc). Wheeler consequently has not
shown erroneous the district court’s dismissal of his complaint
for failure to state a claim.
Wheeler’s appeal is without arguable merit and is therefore
frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). Both the district court’s dismissal and
this court’s dismissal of the instant appeal count as strikes for
purposes of 28 U.S.C. § 1915(g). See 28 U.S.C. § 1915(e)(2);
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Wheeler
is CAUTIONED that if he accumulates three strikes under
§ 1915(g), he will not be able to proceed in forma pauperis 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED.