Soliz v. Linam

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40798
Conference Calendar
JESSE JOE SOLIZ,
Plaintiff-Appellant,
versus
STEVE LINAM; BOB CLAY; VICTORIA POLICE DEPARTMENT,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. V-00-CV-41
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April 11, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Jesse Joe Soliz, Texas prisoner # 530640, has filed an
application for leave to proceed in forma pauperis (IFP) on
appeal, following the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint. By moving for IFP, Soliz 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).
The district court held that the police officers were immune
from liability for any testimony at trial based on absolute
*
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that this opinion should not be published and is not precedent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. 00-40798
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immunity for witnesses. The district court held that to the
extent Soliz was challenging his conviction, his claims were
barred under Heck v. Humphrey, 512 U.S. 477 (1994), and he must
challenge his conviction in a habeas corpus proceeding. The
district court held that the remainder of his claims were time-
barred because they occurred more than two years before the
action was filed. Soliz argues on appeal that Heck does not
apply to his allegations regarding the false aggravated assault
charge because he was found not guilty by the jury on that
charge.
The arguments in Soliz’ brief make it clear that he is
attempting to challenge his conviction in this § 1983 action. “A
section 1983 claim that effectively attacks the constitutionality
of a conviction or imprisonment does not accrue until that
conviction or sentence has been `reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by
a federal court’s issuance of a writ of habeas corpus.” Hudson
v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996) quoting Heck, 512
U.S. at 486-87. The district court correctly held that any
claims arising out of his conviction for possession of controlled
substances are barred by Heck.
To the extent that Soliz is correct that Heck does not bar
his claims against the officers for allegedly making false
accusations of aggravated assault, and to the extent that those
claims arise out of actions taken by the police officers which
fall outside the scope of their testimony at trial and thus are
No. 00-40798
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not barred by witness immunity, the claims are still time-barred.
The events in question occurred in 1989. Soliz did not file this
action until 2000. For § 1983 claims, federal courts apply the
general personal injury statute of limitations of the forum
state. Owens v. Okure, 488 U.S. 235, 249-50 (1989). The
applicable statute of limitations in Texas is two years. Cooper
v. Brookshire, 70 F.3d 377, 380 n.20 (5th Cir. 1995); see Tex.
Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon’s Supp. 2001).
Soliz does not challenge the district court’s holding that all of
his remaining claims not barred by Heck or immunity are time-
barred.
Accordingly, we uphold the district court’s order certifying
that the appeal presents no nonfrivolous issues. Soliz’ 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.
Soliz 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) (“[D]ismissals as frivolous in the district courts or the
court of appeals count [as strikes] for the purposes of
[§ 1915(g)].”). We caution Soliz that once he accumulates three
strikes, he may not 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.