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

                                                 FILED
                                                                         November 17, 2009
                                     No. 09-40522
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

JED STEWART LINEBERRY,

                                                   Plaintiff-Appellant

v.

ANDREW STOVER, Assistant U.S. Attorney, (Individual Capacity); DANIEL
PAUL MEADE, ATF Agent, (Individual Capacity),

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 4:09-CV-57


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jed Stewart Lineberry, federal prisoner # 10296-078, is appealing the
district court’s dismissal of his civil rights complaint for failure to state a claim
and for being frivolous based on Heck v. Humphrey, 512 U.S. 477 (1994).
Lineberry argues that he should have been allowed to file his objections to the
magistrate judge’s report and recommendation of dismissal after the ten-day




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40522

deadline for doing so because he was placed in segregation and denied access to
all legal materials.
      Lineberry admitted that he received notice of the magistrate judge’s report
on March 27, 2009, and he did not seek an extension of time to file his objections
until several days after the district court entered a judgment of dismissal on
April 15, 2009. Thus, Lineberry had the opportunity to timely file a motion for
extension of time, and he failed to do so until after the case was dismissed.
Additionally, in the motion he filed after dismissal, he failed to state any
meritorious objections to the magistrate’s report. The district court did not
abuse its discretion in denying the motion for extension of time to file objections.
F ED. R. C IV. P. 6(b).
      Lineberry further argues that he is entitled to damages because he was
charged and prosecuted for being a felon in possession of a firearm based on the
false testimony of an agent and his former wife. He contends that the prosecutor
did not disclose a Memorandum Agreement to the defense that could have been
used to impeach the trial testimony of his former wife in violation of Brady v.
Maryland, 373 U.S. 83 (1963).
      A district court may dismiss a prisoner's complaint if the action is frivolous
or malicious or fails to state a claim. See 28 U.S.C. § 1915A. We review the
district court’s dismissal de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005).
      If Lineberry’s allegations are proved to be true, they could undermine the
validity of his conviction for being a felon in possession of a firearm. Pursuant
to Heck, he is barred from seeking relief until he demonstrates that his
conviction has been reversed or other wise invalidated. Heck, 512 U.S. at 486-
87; Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994). He has not done so.
Thus, the district court did not err in dismissing the complaint for failure to
state a claim and as frivolous.



                                         2
                                  No. 09-40522

      Lineberry’s appeal is without arguable merit and is thus 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 district court’s dismissal of
Lineberry’s civil rights lawsuit and this court’s dismissal of this appeal count as
two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996). Lineberry received a third strike as a result of this
court’s dismissal as frivolous of his appeal in Lineberry v. U.S., No. 09-10360
(5th Cir. 2009). Lineberry is therefore barred from proceeding 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. See
§ 1915(g).
      APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED




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