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

                                                                FILED
                                                                April 14, 2008
                               No. 06-31300
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

DWAYNE BROWN

                                          Plaintiff-Appellant

v.

LOUISIANA STATE DEPARTMENT OF CORRECTIONS; RICHARD L
STALDER

                                          Defendants-Appellees


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:06-CV-568


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges:
PER CURIAM:*
      Dwayne Brown, Louisiana prisoner # 96518, appeals the dismissal of his
42 U.S.C. § 1983 complaint as frivolous. Brown argues that the defendants, the
Louisiana Department of Public Safety and Corrections (the Department) and
Richard Stalder, have erroneously classified him as a fourth felony offender, a
determination which has rendered him ineligible for parole. The Louisiana
Supreme Court, however, has held that the Department is not bound by a court’s


      *
      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should not be published and is not precedent except under the limited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. 06-31300

habitual offender adjudication in calculating parole eligibility. Townley v. Dep’t
of Public Safety & Corr., 681 So. 2d 951, 953 (La. 1996). Because Brown’s civil
rights action is factually frivolous, the district court’s judgment is affirmed. See
Bickford v. Int’l Speedway Corp., 654 F.2d 1028, 1031 (5th Cir. 1981). We warn
Brown that our affirmance of the district court’s dismissal of his complaint
counts as one strike under 28 U.S.C. § 1915(g) and that, if he accumulates three
strikes, he will not be able 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 Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996).
      AFFIRMED; SANCTION WARNING ISSUED.




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