Cox v. Tomball Police Dept ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21047
Conference Calendar
DERVAN VALINTINE COX,
Plaintiff-Appellant,
versus
THE CITY OF TOMBALL POLICE DEPARTMENT,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-1406
--------------------
April 10, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Dervan Valintine Cox, Texas prisoner # 498198, has filed an
application for leave to proceed in forma pauperis (IFP) on
appeal, following the district court’s dismissal as frivolous of
his 42 U.S.C. § 1983 complaint. By moving for IFP, Cox is
challenging the district court’s certification that IFP should
not be granted on appeal because his appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
*
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that this opinion should not be published and is not precedent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. 01-21047
-2-
The district court held that Cox was challenging his
conviction, that his claims were barred under Heck v. Humphrey,
512 U.S. 477 (1994), and that he must challenge his conviction
in a habeas corpus proceeding.
The arguments in Cox’s 42 U.S.C. § 1983 action make it clear
that he is attempting to challenge his conviction. The district
court correctly held that Cox’s claim necessarily implicates
the constitutionality of his conviction and is barred by Heck.
See Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996).
To the extent Cox sought injunctive relief, i.e., an order
that the City hold a Martin Luther King celebration, he failed to
state a claim. “To plead a constitutional claim for relief under
§ 1983, [a plaintiff must] allege a violation of a right secured
. . . by the Constitution or laws of the United States and a
violation of that right by one or more state actors." Johnson v.
Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). Cox
has not alleged the violation of a constitutional right regarding
such a celebration.
Accordingly, we uphold the district court’s order certifying
that the appeal presents no nonfrivolous issues. Cox’s request
for IFP status is DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
Cox is hereby informed that the dismissal of this appeal as
frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g),
in addition to the strike for the district court’s dismissal.
See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) We
caution Cox that once he accumulates three strikes, he may not
No. 01-21047
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proceed 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 28 U.S.C.
§ 1915(g).
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.