Burton v. City of Ridgeland MS, et al, No. 06-60118 (5th Cir. 2006)
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 12, 2006 Charles R. Fulbruge III Clerk No. 06-60118 Conference Calendar SHAWN BURTON, Plaintiff-Appellant, versus CITY OF RIDGELAND MISSISSIPPI; DETECTIVE FRANK DILLARD; OFFICER MICHAEL JAMES MAGAYHEE; COMMAND SERGEANTS JOHN DOE; DIRECTOR OF INTERNAL AFFAIRS JOHN DOE; CHIEF OF POLICE JOHN DOE; CITY MANAGER JOHN DOE; WITNESS ANITA WITTINGTON; CHIEF, CITY OF RIDGELAND POLICE DEPARTMENT; CITY OF RIDGELAND POLICE DEPARTMENT; CIVIL SERVICE COMMISSION, City of Ridgeland Police Department; COMMAND SERGEANTS, City of Ridgeland Police Department; DIRECTOR OF INTERNAL AFFAIRS DIVISION; MUNICIPLE CORPORATION, organized under and pursuant to the Laws of the State of Mississippi, Defendants-Appellees. -------------------Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:05-CV-293 -------------------Before KING, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Shawn Burton, federal prisoner # 05736-043, appeals the dismissal of his civil rights lawsuit for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). As the district court explained, Burton s claims that the defendants conspired to * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-60118 -2violate his constitutional rights in obtaining his state court conviction are barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994), which held that a prisoner s lawsuit is barred whenever a judgment in the prisoner s favor would necessarily imply the invalidity of his conviction. Burton argues that the district court erred in dismissing his complaint with prejudice. In Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994), however, we squarely held that it was not error to dismiss a complaint pursuant to Heck with prejudice. This appeal is without arguable merit and is thus frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). the appeal is frivolous, it is dismissed. Because 5TH CIR. R. 42.2. We caution Burton that both the district court s and this court s dismissals count as strikes for purposes of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Once Burton accumulates three strikes, he may not 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 § 1915(g). APPEAL DISMISSED; SANCTION WARNING ISSUED.
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