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

                                                               FILED
                                                               June 19, 2008
                               No. 07-40974
                            Conference Calendar           Charles R. Fulbruge III
                                                                  Clerk

ELPIDIO DELGADO, JR

                                         Plaintiff-Appellant

v.

FEDERAL BUREAU OF PRISONS; R GARZA, Correctional Officer;
R CHILDRESS, Warden; UP GARNICA, Lieutenant; ADMINISTRATOR
REMEDY COORDINATOR HARRELL WATTS, National Administrator;
RONALD G THOMPSON, Regional Director

                                         Defendants-Appellees


                Appeal from the United States District Court
                     for the Eastern District of Texas
                          USDC No. 1:04-CV-449


Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
     Elpidio Delgado, Jr., federal prisoner # 83283-079, appeals the district
court’s grant of summary judgment to the defendants and dismissal of his
complaint filed pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Delgado argues that the disciplinary



     *
      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should not be published and is not precedent except under the limited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. 07-40974

proceeding, which resulted in a loss of 27 days of good time credits, is invalid
because he is not required to take a breathalyzer test.
      Delgado’s argument is conclusional, and he does not show that his
disciplinary conviction has been invalidated “on direct appeal, expunged by
executive order, 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.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Therefore,
Delgado’s disciplinary conviction is still outstanding, and his claims for
monetary damages are barred by Heck. See Edwards v. Balisok, 520 U.S. 641,
648 (1997); Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc).
      Delgado’s appeal is without arguable merit and thus frivolous.         See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Therefore, it is dismissed
as frivolous. See 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous
counts as one strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Delgado is cautioned that if he
accumulates three strikes, he will no longer be allowed 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 § 1915(g).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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