Parks v. Jordan, et al, No. 07-31110 (5th Cir. 2008)
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-31110 Conference Calendar December 10, 2008 Charles R. Fulbruge III Clerk LIONEL PARKS, SR Plaintiff-Appellant v. E JORDAN, JR, District Attorney, Parish of Orleans; NEW ORLEANS CITY Defendants-Appellees Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:07-CV-3716 Before DAVIS, WIENER, and PRADO, Circuit Judges. PER CURIAM:* Lionel Parks, Sr., Louisiana prisoner # 067187, appeals the dismissal of an in forma pauperis (IFP) civil rights complaint alleging that he is wrongfully imprisoned because his conviction is invalid. The district court granted the defendants FED. R. CIV. P. 12(b)(6) motion to dismiss because it determined that Parks s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). We review * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-31110 this determination de novo. See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007), cert. denied, 128 S. Ct. 1230 (2008). Parks s claims concerning his conviction are barred by Heck because he has failed to establish that the conviction has been reversed, expunged, or otherwise invalidated. See Heck, 512 U.S. at 486-87. Thus, the appeal is without arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is dismissed. See 5TH CIR. R. 42.2. The district court s dismissal of the complaint for failure to state a claim for relief and our dismissal of this appeal as frivolous count as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Parks is warned that if he accumulates three strikes, he will be 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). APPEAL DISMISSED; SANCTION WARNING ISSUED. 2
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