     Case: 13-40385      Document: 00512500334         Page: 1    Date Filed: 01/14/2014




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

                                                                                    FILED
                                    No. 13-40385                              January 14, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
DAVID MARK HARDY,

                                                 Plaintiff-Appellant

v.

ERNEST GONZALEZ, Assistant United States Attorney; ROBERT GERARD
ARAMBIDE, Public Defender; TOMMY MOORE, Paris Police Department;
ANSEN AMIS, Lamar County Sheriff's Deputy; MIKE BOAZ, NLISD resource
officer; HAROLD MCCLURE, Sulphur Springs Police Department;
BRITTANY JUANITZ INGRAM, Lamar County resident; MICHAEL LUTZ,
Immunized co-conspirator; DOES (NUMBERS 1-25),

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:12-CV-766


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       David Mark Hardy, federal prisoner # 14486-078, proceeding pro se and
in forma pauperis, appeals the district court’s dismissal of his civil action
raising claims allegedly arising under the Racketeering Influenced 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40385

Corrupt Organizations Act (RICO), 18 U.S.C. § 1961. Hardy was convicted by
a jury of conspiracy to possess with intent to manufacture or distribute 500
grams or more of a mixture or substance containing a detectable amount of
methamphetamine, and he was sentenced to 360 months of imprisonment. His
conviction and sentence were affirmed on direct appeal.          United States v.
Hardy, 393 F. App’x 205 (5th Cir. 2010). His 28 U.S.C. § 2255 motion was
denied by the district court on October 12, 2012. Hardy v. United States, 2012
WL 4863155 (E.D. Tex. 2012).
      On November 1, 2012, Hardy filed this civil action against various people
involved in his prosecution and conviction, alleging that the defendants
“knowingly participated in offenses involving fraud connected with a case
under Title 11, some of whose actions caused a sequence of events which forced
HARDY and his wife into bankruptcy under Chapter 7, then corruptly, through
acts of racketeering, attempted to cover it up.” Hardy filed bankruptcy in
February 2006. His bankruptcy was discharged on April 6, 2006. Hardy was
tried and convicted in November 2008. He alleged that the actions of the
defendants to prosecute him for a non-existent offense made them liable for his
bankruptcy.
      The district court determined that because Hardy had sued people
associated with his conviction, and because the events occurring from 2005 to
2008 described in Hardy’s complaint as violating RICO also resulted in his
conviction, “a judgment in Hardy’s favor would necessarily imply the invalidity
of his conviction.” The district court dismissed the complaint for failure to state
a claim under 28 U.S.C. § 1915A(b)(1) as barred by Heck v. Humphrey, 512
U.S. 477 (1994), because Hardy had not shown that his conviction had been
invalidated. The district court further determined that even if Heck did not
bar some of his claims, his claims would still have to be dismissed under the



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                                 No. 13-40385

two year statute of limitations, noting that the complained of events occurred
in 2005 to 2008 and that his lawsuit filed in November 2012 was too late.
      Hardy argues that the district court erred in dismissing his RICO claims
as time barred by applying the two year personal injury statute of limitations.
He notes that he filed his complaint on November 1, 2012, and he contends
that the district court erred in using the date his complaint was docketed,
November 26, 2012. He argues that a four year statute of limitations with an
“injury discovery” accrual rule applies to his civil RICO claims, citing Rotella
v. Wood, 147 F.3d 438 (5th Cir. 1998), affirmed by, 528 U.S. 549 (2000).
      A dismissal for failure to state a claim upon which relief may be granted
under § 1915A is reviewed under the same de novo standard as a dismissal
under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren, 134 F.3d 732,
733-34 (5th Cir. 1998).
      Hardy is correct that the mailbox rule applies and that the filing date of
his complaint was November 1, 2012. See Cooper v. Brookshire, 70 F.3d 377,
379-80 (5th Cir. 1995) (applying mailbox rule to prisoner’s pro se civil rights
complaint).   Hardy certified that he delivered his complaint to prison
authorities on November 1, 2012. He is also correct that a four year statute of
limitations applies to civil RICO claims, and that such claims accrue when the
injury is discovered. See Rotella, 528 U.S. at 552-55. However, if Heck applies
to Hardy’s claims, the statute of limitations issue need not be decided. See
Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994) (noting that if Heck
applies, the claims have not yet accrued and so the statute of limitations is not
a concern).
      In Heck v. Humphrey, the Supreme Court held that, in order to recover
damages for an allegedly unconstitutional conviction, or for “harm caused by
actions whose unlawfulness would render a conviction or sentence invalid,” a



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prisoner must show that the conviction or sentence has been “reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal
court's issuance of a writ of habeas corpus.” 512 U.S. at 486-87. We applied
Heck in Stephenson v. Reno, 28 F.3d at 27, a case in which a federal prisoner
alleged civil rights violations and civil RICO claims. We determined that
Stephenson’s civil rights action constituted a challenge to the fact or length of
his confinement and was barred by Heck. 28 F.3d at 27-28.
      A close reading of his complaint shows that Hardy’s RICO claims were
focused on recovering damages for the loss of his employment and his
bankruptcy, and that he was not seeking to invalidate his conviction. Whether
a judgment in Hardy’s favor necessarily implies the invalidity of his conviction
under Heck is not clear. Assuming arguendo that Hardy’s civil RICO claims
are not barred by Heck, they are untimely, even applying the four year statute
of limitations. Hardy alleged repeatedly that his injury was the loss of his
employment and his bankruptcy, which occurred in 2005 and 2006. Applying
the “injury discovery” rule for civil RICO claims adopted in Rotella, Hardy had
four years from, at the latest, April 6, 2006, the date of discharge of his
bankruptcy. Although Hardy argues that a “separate accrual” rule should
apply, he does not identify any injury subsequent to the date of his bankruptcy
in 2006. Thus, even applying the four year statute of limitations, Hardy’s
RICO claims in his complaint filed on November 1, 2012, are time barred. The
district court did not err in dismissing Hardy’s complaint under § 1915A(b)(1).
See Black, 134 F.3d at 733-34.
      Hardy’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous,
it is dismissed. See 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous



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and the district court’s dismissal count as strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Hardy 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).
      APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.




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