     Case: 17-60434      Document: 00514386153         Page: 1    Date Filed: 03/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                      No. 17-60434
                                                                               Fifth Circuit

                                                                             FILED
                                                                        March 14, 2018

JAMES WALTER CREEL,                                                     Lyle W. Cayce
                                                                             Clerk
                                                 Plaintiff-Appellant

v.

EDDIE H. BOWEN; JIM HOOD; DANIAL C. JONES; DAN A. MCINTOSH;
ALICE MEADOWS; KEITH EARL COLLINS; SHERIFF         RAYBURN;
GEORGE T. HOLMES; COVINGTON COUNTY SHERIFF'S DEPARTMENT;
CITY OF COLLINS; COUNTY OF COVINGTON; STAN Q. SMITH; MAYOR
OF THE CITY OF COLLINS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:17-CV-30


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       James Walter Creel, Mississippi prisoner # 33420, was convicted in 1994
of escaping custody while under indictment for burglary and was sentenced to
life imprisonment as a habitual offender. In 2017, Creel filed a civil rights
complaint alleging numerous defects in his trial and appellate proceedings and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 17-60434

asserting that he has suffered tangible injuries as a result of his wrongful
conviction. See 42 U.S.C. § 1983. The district court dismissed the complaint
for failure to state a claim and assessed a strike against Creel. See 28 U.S.C.
§ 1915(e)(2)(B)(ii), (g). Creel moves this court for leave to proceed in forma
pauperis (IFP) and for appointment of counsel.
      Insofar as Creel challenges defects in his state direct appeal proceedings
and the factual basis for the escape conviction and seeks immediate discharge
from custody, he attacks the lawfulness, rather than the conditions, of his
confinement. See Wilkinson v. Dotson, 544 U.S. 74, 78-79, 81-82 (2005); Carson
v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997).         Because Creel’s escape
conviction has not been reversed, expunged, declared invalid, or otherwise
formally called into question, such a complaint is not cognizable under § 1983.
See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Furthermore, Creel’s
vague and conclusory allegations that he suffered physical and psychological
harm while in custody do not suffice to state a claim for relief under § 1983.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Hale v. Harney, 786 F.2d 688,
690 (5th Cir. 1986). Creel fails to raise a nonfrivolous issue for appeal. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
      Creel’s motions to proceed IFP and to appoint counsel on appeal are
DENIED, and the appeal is DISMISSED AS FRIVOLOUS. See Baugh v.
Taylor, 117 F.3d 197, 202 & n.4 (5th Cir. 1997); 5TH CIR. R. 42.2. The district
court’s dismissal of his complaint and our dismissal of Creel’s appeal each
counts as a strike against him for purposes of § 1915(g). See Coleman v.
Tollefson, 135 S. Ct. 1759, 1761-64 (2015). Creel is CAUTIONED that once he
accumulates three strikes, he may not proceed IFP 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 § 1915(g). Furthermore, as



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                                  No. 17-60434

this represents Creel’s sixth attempt to challenge his 1994 escape conviction
on grounds previously rejected, he is WARNED that future frivolous,
repetitive, or otherwise abusive filings will invite the imposition of additional
sanctions, which may include dismissal, monetary sanctions, and restrictions
on his ability to file pleadings in this court and any court subject to this court’s
jurisdiction.




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