                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        September 3, 2003

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                           No. 03-40300
                         Summary Calendar


JERRY W. WILLIAMS,

                                    Plaintiff-Appellant,

versus

UP MARTINEZ, Individually and in his official capacity as
Secretary of Housing & Urban Development (HUD); WILLIAM
DALEY, General Counsel; YOUNG IMPLEMENTATION OFFICE
DIRECTOR, (YIO); CARMELO MELENDEZ, Individually and in his
official capacity; DAVID PILLEGGI, Senior Investigator;
OFFICE OF INSPECTOR GENERAL, (OIG); DAVE HENDERSON, Assistant
United States Attorney for The Department of Justice (AUSA);
UNIDENTIFIED PARTY, (DOJ) In his individual and official
capacity,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 1:02-CV-238
                       --------------------

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

          Jerry W. Williams, Texas inmate # 1103979, proceeding pro

se and in forma pauperis (“IFP”), appeals the district court’s 28

U.S.C. § 1915(e) dismissal as frivolous and for failure to state a


     *
        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that this opinion should not be published and is not precedent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. 03-40300
                                        -2-

claim of his complaint filed pursuant to Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 389 (1971).                Williams sought damages

for the defendants’ alleged conspiracy, perjury, unlawful search,

prosecutorial misconduct, and selective prosecution that resulted

in Williams’ criminal indictment and conviction.

              Williams      contends     that    he   is   not   challenging    his

conviction and that his claims are not barred by Heck v. Humphrey,

512 U.S. 477 (1994).          In addition, he asserts that the district

court should have allowed him to amend his complaint prior to

dismissal.

              We review de novo the district court’s dismissal of an

IFP complaint for failure to state a claim.                 Black v. Warren, 134

F.3d 732, 734 (5th Cir. 1998).           In our review, we consider that all

of the plaintiff’s factual allegations are true, and we uphold the

dismissal only if it appears that no relief could be granted under

any   set    of     facts   that   could   be    proved    consistent    with   the

allegations.         Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.

1998).      We review a dismissal of a complaint as frivolous for an

abuse of discretion.          Black, 134 F.3d at 733.

              As the district court determined, resolution of Williams’

claims      would    necessarily       imply    the   invalidity    of   Williams’

conviction, and Heck, 512 U.S. at 486-87, mandates dismissal

because no cause of action accrues unless and until Williams can

show that he has had his conviction reversed, expunged, declared

invalid, or otherwise called into question by a writ of habeas
                               No. 03-40300
                                    -3-

corpus, 28 U.S.C. § 2254.      See Stephenson v. Reno, 28 F.3d 26, 27-

28 (5th Cir. 1994).      Because Williams’ cause of action has not yet

accrued, the     district    court   did   not   abuse   its   discretion   by

dismissing     his     complaint     without     amendment     and    further

clarification.       Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994).

          Williams’ appeal is without arguable merit, is frivolous

and is DISMISSED.      5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983).        The dismissal of this appeal and the

district court’s dismissal of Williams’ complaint count as strikes

under the Prison Litigation Reform Act.           Adepegba v. Hammons, 103

F.3d 383, 387 (5th Cir. 1996).             Williams is WARNED that if he

accumulates three “strikes” under 28 U.S.C. § 1915(g) 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.              28 U.S.C.

§ 1915(g).

          APPEAL DISMISSED, SANCTION WARNING ISSUED.
