                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                December 17, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 04-10624
                         Conference Calendar



RAFAEL ALVARO PRIETO,

                                     Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA; GEORGE W. BUSH, JR.,
PRESIDENT OF THE UNITED STATES; STATE OF TEXAS;
RICK PERRY, Governor; JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; INSTITUTIONAL
DIVISION; CITY OF HURST, Texas Police Department; J. MEEKS,
Officer, Hurst Police Department; NFN YOUNG, Officer,
Hurst Police Department; NFN REED, Officer, Hurst Police
Department UNKNOWN OFFICERS, Hurst Police Department,

                                     Defendants-Appellees.

                        --------------------

          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:04-CV-101-A

                        --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Rafael Alvaro Prieto, Texas state prisoner # 843320, appeals

the district court’s dismissal of his 42 U.S.C. § 1983 complaint

as frivolous.   Prieto argues that he is entitled to damages


     *
        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that this opinion should not be published and is not precedent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. 04-10624
                                  -2-

because he was illegally convicted of sexually molesting two

teen-aged boys.

     Prieto is challenging the validity of his conviction, and he

has not demonstrated that his conviction has been reversed,

questioned, or declared invalid.     See Heck v. Humphrey, 512 U.S.

477, 486-87 (1994). The district court did not abuse its

discretion in dismissing Prieto’s complaint as frivolous.       See

Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998); 28 U.S.C. §

1915A(b)(1).

     Prieto’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.   Prieto is warned that the district court’s

dismissal of his complaint as frivolous constitutes a “strike”

and that the dismissal of this appeal as frivolous also counts as

a “strike” under 28 U.S.C. § 1915(g).       See Adepegba v. Hammons,

103 F.3d 383, 385-87 (5th Cir. 1996).       Prieto is cautioned that

if he accumulates three “strikes” under 28 U.S.C. § 1915(g), he

will not be able to proceed 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 28 U.S.C. § 1915(g).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
