                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                November 1, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20137
                          Summary Calendar


GERALD ALLEN PERRY,

                                          Plaintiff-Appellant,

versus

KKK JOHN B. HOLMES, Former District Attorney of
Harris County; STEVE BALDASSANO, Former Assistant
District Attorney of Harris County; BOYOL SMITH,
Sergeant; K. R. WILLIAMSON, Sergeant,

                                          Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:04-CV-3865
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     In 2004, Gerald Allen Perry, a Texas prisoner (# 644896)

serving a 45-year prison sentence for a 1993 jury-trial

conviction of aggravated robbery, filed the instant 42 U.S.C.

§ 1983 civil rights action challenging that conviction and

sentence as being the product of bad-faith prosecution and false

imprisonment.   He alleged that the defendants produced a

fraudulently incomplete affidavit to support his arrest warrant.

     *
        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that this opinion should not be published and is not precedent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. 05-20137
                                   -2-

Perry now appeals the district court’s dismissal of his complaint

as frivolous and for failure to state a claim, pursuant to 28

U.S.C. § 1915(e)(2)(B), as barred by the applicable two-year

Texas limitations statute for personal injury actions.

     The district court erred in concluding that Perry’s

complaint was time-barred.     Because Perry continues to serve the

prison sentence for the conviction he is effectively attacking,

his claims have not yet accrued for limitations purposes, under

the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994).     See

Castellano v. Fragozo, 352 F.3d 939, 959 (5th Cir. 2003), cert.

denied, 125 S. Ct. 31 (2004).     This court may affirm on any

ground, however, that is apparent from the record.     Sojourner T

v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).     In the instant

case, the Heck doctrine itself is such a ground.     “[I]n order to

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 42

U.S.C. § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal or otherwise

invalidated by official action.     Heck, 512 U.S. at 486-87

(footnote omitted).   If a judgment in favor of the plaintiff

“would necessarily imply the invalidity of his conviction or

sentence, the complaint must be dismissed unless the plaintiff

can demonstrate that conviction or sentence has already been

invalidated.”   Id. at 487.    Because Perry’s malicious-prosecution
                            No. 05-20137
                                 -3-

and false-imprisonment claims directly implicate the validity of

his conviction and confinement, his claims are not cognizable

under 42 U.S.C. § 1983.   See id.

     Although the district court’s dismissal was based on an

erroneous legal basis, the court’s underlying conclusion that

Perry’s complaint was frivolous was correct.    See Taylor v.

Johnson, 257 F.3d 470, 472 (5th Cir. 2001).    Perry’s appeal is

without arguable merit and is frivolous.    See Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983).    Accordingly, the appeal is

DISMISSED.   See 5TH CIR. 42.2.

     The dismissal of Perry’s complaint as frivolous and of this

appeal as frivolous count as “strikes” for purposes of the three-

strikes provision, 28 U.S.C. § 1915(g).    See Adepegba v. Hammons,

103 F.3d 383, 388 (5th Cir. 1996).    Perry is cautioned that if he

accumulates three strikes, 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 28 U.S.C.

§ 1915(g).

     IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING

ISSUED.
