                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                                                           April 19, 2004
                            UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT
                                                                                     Charles R. Fulbruge III
                                                                                             Clerk
                                   _________________________

                                          No. 03-60593
                                     SUMMARY CALENDAR
                                   _________________________

RUSSELL KEITH HILL,

                       Plaintiff - Appellant,

   v.

SCOTT SCHWARTZ; THOMAS SCHWARTZ; LAMAR COUNTY
PUBLIC DEFENDER’S OFFICE,

                  Defendants - Appellees.
______________________________________________________________________________

                 On Appeal from the United States District Court for the
                            Southern District of Mississippi
                                   (2:02-CV-734)
______________________________________________________________________________

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal, we review the district court’s decision dismissing Plaintiff - Appellant,

Russell Hill’s, 42 U.S.C. § 1983 complaint for failure to state a claim on which relief may be

granted.

        Hill filed his complaint while he was awaiting trial for armed robbery, alleging a conspiracy



        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.

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between the public defender, the state prosecutor, and a Mississippi state judge. Hill argues that

the district court should not have dismissed his complaint for failure to state a claim because the

alleged conspiracy violated his constitutional rights. He next argues that the district court should

have converted his 42 U.S.C. § 1983 complaint into a 28 U.S.C. § 2254 habeas petition when

Hill’s state court conviction became final. Finally, Hill argues that the district court erred in

assessing a strike against him for purposes of 28 U.S.C. § 1915(g).

          At the time Hill filed his original 42 U.S.C. § 1983 complaint, his claims were subject to

being stayed because Hill had not yet been convicted in Mississippi state court. See Mackey v.

Dickson, 47 F.3d 744, 746 (5th Cir. 1995). Following Hill’s conviction, the district court correctly

dismissed the complaint for failure to state a claim. See id.; see also Heck v. Humphrey, 512 U.S.

477 (1994).

          Hill has failed to provide any evidence that he had exhausted his state court remedies with

regard to his claims as required by 28 U.S.C. § 2254(b)(1). Hill has not shown that exhaustion of

his state court remedies would be futile. See Deters v. Collins, 985 F.2d 789, 795-96 (5th Cir.

1993). Thus, the district court did not err in refusing to convert his 42 U.S.C. § 1983 complaint

into a 28 U.S.C. § 2254 petition.

          Finally, the district court did not err in assessing a strike against Hill. Hill’s complaint was

dismissed for failure to state a claim upon which relief may be granted, which counts as a strike.

See Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 461-64 (5th Cir. 1998); 28 U.S.C.

915(g).

          For the foregoing reasons, we affirm the district court’s judgment.




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