                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                            NOVEMBER 28, 2006
                               No. 06-11740                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 05-61885-CV-KAM

CHARLES E. MCBRIDE,


                                                             Plaintiff-Appellant,

                                    versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                             (November 28, 2006)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Charles McBride, a pro se prisoner, appeals the sua sponte dismissal,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), of his 42 U.S.C. § 1983 action for failure

to state a claim upon which relief may be granted. McBride filed this § 1983

action alleging several violations of the U.S. Constitution stemming from his

criminal conviction by a jury of only five members and seeking damages therefor.

      The Supreme Court held in Heck v. Humphrey that:

      In order to recover damages for allegedly unconstitutional conviction
      or imprisonment, or for other harm caused by actions whose
      unlawfulness would render a conviction or sentence invalid, a § 1983
      plaintiff must prove 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, 28
      U.S.C. § 2254.

512 U.S. 477, 486-87 (1994). If this type of § 1983 action is brought before the

challenged conviction or sentence is invalidated, it must be dismissed. Id. at 487.

Thus, “the district court must consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence; if it would,

the complaint must be dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated.” Id.

      In this case, all of McBride's claims stem from the central allegation that his

criminal trial was unconstitutional because there were only five members of the

jury panel instead of six. In order to rule in favor of McBride on his § 1983

claims, therefore, we must determine that his trial was unconstitutional. Because

                                          2
this determination would necessarily render his conviction and sentence invalid,

and because McBride has not proven that his 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, the complaint must be dismissed

pursuant to Heck.

      AFFIRMED




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