                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         October 6, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 04-10175
                         Summary Calendar


BENJAMIN A. HASSLER, JR.,

                                    Plaintiff-Appellant,

versus

CARSON COUNTY; STUART MESSER, Carson County District Attorney;
MIKE BRITTEN, County Commissioner; KENNETH WARE, County
Commissioner; JERRY STRAWN, County Commissioner; KEVIN HOWELL,
County Commissioner; G. ROBERTSON, Carson County Sheriff; CELESTE
BICHEL, Carson County District Clerk,

                                    Defendants-Appellees.

                        - - - - - - - - - -
          Appeals from the United States District Court
                for the Northern District of Texas
                       USDC No. 2:03-CV-148
                        - - - - - - - - - -

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Benjamin A. Hassler filed this pro se, in forma pauperis

complaint pursuant to 42 U.S.C. § 1983, at a time when he was a
Texas prisoner (# 222006) serving a 99-year prison term for a

1970 conviction of malice murder.   Hassler, who allegedly has

since discharged his sentence, now appeals the district court’s

sua sponte dismissal of his complaint as frivolous and for

failure to state a claim upon which relief may be granted,

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii).     The district

     *
        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that this opinion should not be published and is not precedent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. 04-10175
                                -2-

court concluded that Hassler’s claims regarding the failure to

credit him with jail time served in Carson County were barred by

the rule of Heck v. Humphrey, 512 U.S. 477 (1994), insofar as he

sought monetary damages.   The court concluded that claims for

injunctive relief sounded in habeas and should have been brought

in a 28 U.S.C. § 2254 petition.

     Hassler contends that the district court’s application of

the Heck bar was improper because the 28 U.S.C. § 2254 remedy was

unavailable to him, both because he has completed his prison
sentence and because the limitations imposed by the Antiterrorism

and Effective Death Penalty Act (“AEDPA”) prevent him from

seeking habeas relief.   “[I]n order to recover damages for

allegedly unconstitutional . . . imprisonment, . . . a § 1983

plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, declared invalid by a state tribunal

authorized to make such a determination, or called into question

by a federal court’s issuance of a writ of habeas corpus, 28

U.S.C. § 2254.”   Heck, 512 U.S. at 486-87.   The Heck bar applies
even to former prisoners for whom the 28 U.S.C. § 2254 remedy is

no longer available, if the plaintiff has failed to establish

that other “procedural vehicle[s]” are lacking.    See Randell v.

Johnson, 227 F.3d 300, 301 (5th Cir. 2000).    Hassler has not made

such a showing.   Because Hassler’s sentence has not been

overturned or otherwise invalidated, his claims were barred by

Heck.   See Randell, 227 F.3d at 301.   Similarly, Hassler’s claim

for injunctive relief is not actionable under 42 U.S.C. § 1983.

See Newby v. Johnson, 81 F.3d 567, 569 & n.1 (5th Cir. 1996).
                            No. 04-10175
                                 -3-

Hassler thus has not demonstrated that the district court abused

its discretion in dismissing his complaint as frivolous,

see Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001), or

erred in dismissing the complaint for failure to state a claim.**

See Hart v. Hairston, 343 F.3d 762, 763-64 (5th Cir. 2003).

     The magistrate judge did not abuse his discretion in denying

Hassler’s motion for recusal.    See United States v. MMR Corp.,

954 F.2d 1040, 1045-46 (5th Cir. 1992).

     The judgment of the district court is AFFIRMED.   Because
Hassler was incarcerated at the time he filed the instant

complaint, the district court’s dismissal of his complaint as

frivolous counts as a “strike” for purposes of 28 U.S.C.

§ 1915(g).    See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996).    Should Hassler be returned to prison and accumulate three

strikes, he would not be permitted to proceed IFP in any civil

action or appeal filed while incarcerated or detained in any

facility unless he were under imminent danger of serious physical

injury.   See 28 U.S.C. § 1915(g).
     AFFIRMED; SANCTION WARNING ISSUED.




     **
       Contrary to Hassler’s contentions, a district court’s
dismissal of a complaint both as frivolous and for failure to
state a claim is not “legally inconsistent.”
