Reyes v. Herrera, et al, No. 05-41022 (5th Cir. 2006)
Annotate this Case
Download PDF
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 24, 2006 Charles R. Fulbruge III Clerk No. 05-41022 Conference Calendar JOSE COLLEGA REYES, Plaintiff-Appellant, versus ROBERT D. HERRERA, Warden; DARRELL M. MEISNER, Sergeant; STEPHEN W. MUNGER, Correctional Officer IV, Defendants-Appellees. -------------------Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:05-CV-91 -------------------Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Jose Collega Reyes, Texas prisoner # 505402, appeals the district court s denial of his FED. R. CIV. P. 60(b) motion, in which he sought relief from the judgment dismissing his 42 U.S.C. § 1983 complaint. Reyes filed the complaint to challenge a disciplinary conviction, and he sought restoration of 1460 days of good time credits. The district court determined that Reyes could not assert his claim in a civil rights action unless he * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41022 -2first showed that his disciplinary conviction had been reversed, expunged, or otherwise declared invalid. Reyes argues that the dismissal of his complaint makes it impossible for him to protect his right to file suit against the defendants because he cannot stay the statute of limitations. Reyes s concern is unfounded because his claim will not accrue until he has succeeded in overturning his disciplinary conviction. See Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996). Reyes also contends that his action is cognizable under § 1983 because it would not result in an immediate or speedier release. He argues that he is merely seeking a full and fair disciplinary hearing. A prisoner cannot, in a § 1983 action, challenge the fact or duration of his confinement or recover good-time credits lost in a prison disciplinary proceeding. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998)(en banc). Reyes has not shown that the district court abused its discretion in denying his Rule 60 motion. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). Reyes s appeal of the denial of his Rule 60(b) motion is without arguable merit and is frivolous. F.2d 215, 219-20 (5th Cir. 1983). frivolous, it is dismissed. See Howard v. King, 707 Because the appeal is See 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g), as does the district court s dismissal of his § 1983 No. 05-41022 -3complaint. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Reyes is cautioned that, if he accumulates three strikes under § 1915(g), he will not be permitted 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 § 1915(g). APPEAL DISMISSED; SANCTION WARNING ISSUED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
