     Case: 09-20742     Document: 00511114268          Page: 1    Date Filed: 05/18/2010




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

                                                  FILED
                                                                            May 18, 2010
                                     No. 09-20742
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

LADAVID B. TAYLOR,

                                                   Plaintiff-Appellant

v.

RICHARD A. GUNNELS, Assistant Warden; MARKETE MILLER, Sergeant;
THOMAS L. HUTT, Captain; LINCOLN E. CLARK, Disciplinary Captain;
DONALD E. MUNIZ, Major; LAWRENCE DAWSON, JR., Captain; KRISTEN
L. GIBSON, Case Manager II; TRACY D. PUCKETT, Sergeant; NATHANIEL
QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-3068


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
        LaDavid B. Taylor, Texas prisoner # 938697, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 action, which challenged a prison disciplinary
proceeding in which he lost good-time credits, for failure to state a claim. Taylor



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20742    Document: 00511114268 Page: 2         Date Filed: 05/18/2010
                                 No. 09-20742

argues that the district court erred by holding that his claims are barred by Heck
v. Humphrey, 512 U.S. 477 (1994).        He contends that Heck does not bar
challenges to prison disciplinary proceedings.
      We review the dismissal of a complaint pursuant to 28 U.S.C. § 1915A de
novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). Under Heck, 512
U.S. at 486-87, when a state prisoner whose conviction or sentence has not been
declared invalid seeks damages in a § 1983 suit and a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence, the
suit must be dismissed. For purposes of Heck, the term “conviction” includes
prison disciplinary decisions that result in the loss of good-time credits. Clarke
v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc).
      Here, Taylor asserted that his constitutional rights had been violated
because the disciplinary rule that he was found guilty of violating was
unconstitutionally vague and there was no evidence to support the charge. He
sought monetary damages and to have the allegedly false disciplinary report
expunged from his record. If Taylor’s claims are credited, they necessarily imply
that the finding of guilt and the punishment for the violation were invalid.
Because he has not shown that the disciplinary decision has been overturned,
he cannot maintain a § 1983 action for damages or the expungement of the
disciplinary report from his record. See Edwards v. Balisok, 520 U.S. 641, 648
(1997); Heck, 512 U.S. at 486-87; Clarke, 154 F.3d at 189. Accordingly, the
district court did not err in dismissing Taylor’s complaint for failure to state a
claim.
      Taylor’s 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 5 TH C IR. R. 42.2. The dismissal of this appeal as frivolous counts
as a strike under § 1915(g), as does the district court’s dismissal of Taylor’s
complaint. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Taylor is cautioned that, if he accumulates three strikes under § 1915(g), he will

                                        2
   Case: 09-20742   Document: 00511114268 Page: 3        Date Filed: 05/18/2010
                                No. 09-20742

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.




                                       3
