     Case: 10-60740 Document: 00511422958 Page: 1 Date Filed: 03/24/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 24, 2011
                                     No. 10-60740
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MAURICE ANTONIO JOHNSON,

                                                   Plaintiff-Appellant

v.

JAMES MURRAY, Investigator, Lamar County Sheriff’s Department; RICHARD
COX, Investigator, Lamar County Sheriff’s Department,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                               USDC No. 2:10-CV-92


Before HIGGINBOTHAM, SMITH and HAYNES, Circuit Judges.
PER CURIAM:*
       Maurice Antonio Johnson, Mississippi prisoner # 33122, appeals the
district court’s 28 U.S.C. § 1915(e)(2)(B)(ii) dismissal of his pro se 42 U.S.C.
§ 1983 complaint as barred by Heck v. Humphrey, 512 U.S. 477 (1994). Johnson
argues that his parole was wrongfully revoked based upon Mississippi state
criminal charges arising from allegations that he acted under false pretense in
an attempt to secure items of value from a Walmart. He relies, inter alia, upon


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-60740 Document: 00511422958 Page: 2 Date Filed: 03/24/2011

                                    No. 10-60740

an order of nolle prosse issued by a Mississippi state court in connection with the
criminal charges related to the Walmart incident to support his argument that
the criminal charges were without factual foundation. He contends that the
revocation of his parole based upon the Walmart incident and his continued
incarceration violate his constitutional rights. Johnson has also filed a motion
for leave to file an amended complaint.
      A district court shall dismiss a case at any time if the court determines
that an action fails to state a claim upon which relief may be granted. See
§ 1915(e)(2)(B)(ii). This court employs the same de novo standard to review a
§ 1915(e)(2)(B)(ii) dismissal as is used to review a dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(6). See Bradley v. Puckett, 157 F.3d 1022, 1025
(5th Cir. 1998). “Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (emphasis and quotation omitted). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).             Also, “[t]o recover
damages for allegedly unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the 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.” Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). The rule set forth in Heck applies to a
challenge to the validity of confinement resulting from a parole-revocation
hearing. McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir.
1995).



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                                   No. 10-60740

        Johnson’s claim for damages based upon the revocation of his parole and
his continued incarceration implicates the validity of the revocation hearing.
Johnson does not explicitly argue that the parole revocation has been reversed,
expunged, declared invalid, or called into question by a federal court’s issuance
of a writ of habeas corpus. See Heck, 512 U.S. at 486-87; McGrew, 47 F.3d at
161.    The order of nolle prosse is not relevant to the validity of Johnson’s
confinement resulting from the parole revocation hearing. Johnson’s reliance
upon the order of nolle prosse therefore is not persuasive.
        Johnson’s appeal is without arguable merit and therefore is frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is dismissed. See 5 TH C IR. R. 42.2. Johnson is cautioned that the
dismissal of this appeal as frivolous counts as a strike under § 1915(g), as does
the district court’s dismissal for failure to state a claim. See § 1915(g); Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Johnson therefore has two
strikes under § 1915(g) and he is cautioned that if he accumulates three strikes
under § 1915(g), he will not be able to 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 § 1915(g).
        IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED; MOTION FOR LEAVE TO AMEND COMPLAINT
DENIED.




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