     Case: 12-60566       Document: 00512196044         Page: 1     Date Filed: 04/03/2013




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

                                                                            FILED
                                                                            April 3, 2013
                                     No. 12-60566
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




GARY LERON THOMAS,

                                                  Plaintiff-Appellant,

versus

CHRISTOPHER EPPS, Commissioner; JAMES HOLMAN, Superintendent,

                                                  Defendants-Appellees.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:12-CV-263




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Gary Thomas, Mississippi prisoner # 28483, appeals the dismissal of his
in forma pauperis (“IFP”), pro se complaint, which raised claims pursuant to 42
U.S.C. § 1983 and 28 U.S.C. § 2254. The district court dismissed the § 1983
claims for failure to state a claim and noted a 28 U.S.C. § 1915(g) strike for the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60566     Document: 00512196044      Page: 2    Date Filed: 04/03/2013

                                  No. 12-60566

dismissal. The court dismissed the § 2254 claims without prejudice for failure to
exhaust. On appeal, Thomas argues that his claim that his probation was erron-
eously revoked for misidentification is a cognizable § 1983 claim.
      Because Thomas’s complaint sought monetary damages and immediate
release, the district court correctly construed it as raising both § 2254 claims and
§ 1983 claims and properly analyzed both types. See Serio v. Members of La.
State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987); Preiser v. Rodriguez,
411 U.S. 475, 494, 499-500 (1973). Thomas has abandoned, by failing to chal-
lenge, the dismissal of his § 2254 claims. See Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993). Regarding his § 1983 claims, Thomas’s assertion of false impris-
onment implicates the validity of his probation revocation. He has failed to
establish that the probation revocation has been reversed, expunged, declared
invalid, or called into question by a federal court’s issuance of a writ of habeas
corpus, so his claims are barred pursuant to Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). See McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 161
(5th Cir. 1995).
      Thomas’s appeal is without arguable merit and thus is frivolous. See How-
ard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Therefore, it is DISMISSED.
See 5TH CIR. R. 42.2. This dismissal counts as a strike under § 1915(g), as does
the district court’s dismissal of the complaint. See § 1915(g); Patton v. Jefferson
Corr. Ctr., 136 F.3d 458, 463-64 (5th Cir. 1998); Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996).
      We have also dismissed as frivolous Thomas’s appeal in Thomas v. Jack-
son, No. 12-60518. Our dismissal of that appeal counts as a strike, and the dis-
missal of the complaint that is the subject of that appeal also counts as a strike.
Accordingly, Thomas has accumulated more than three strikes and is now
barred from proceeding IFP in any civil action or appeal filed while he is incar-
cerated or detained in any facility unless he is under imminent danger of serious
physical injury. See § 1915(g).

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