Vidales v. Abbott, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 17, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40978
Conference Calendar
JOE VIDALES,
Plaintiff-Appellant,
versus
GREGORY W. ABBOTT, Texas Attorney General; DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION; MICHAEL P. MONDVILLE, TDCJ - Office of the General
Counsel,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:06-CV-40
--------------------
Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Joe Vidales, Texas prisoner # 677120, appeals the district
court’s dismissal as frivolous of his 42 U.S.C. § 1983 suit in
which he alleged that his conviction and sentence were unlawful.
A district court shall dismiss a case if it determines that the
case is frivolous or fails to state a claim upon which relief can
be granted. 28 U.S.C. § 1915(e)(2)(B). This court reviews the
dismissal of a prisoner’s complaint as frivolous for an abuse

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No. 06-40978
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of discretion. Black v. Warren, 134 F.3d 732, 733 (5th Cir.
1998).
With the benefit of liberal construction, Vidales argues
that his complaint should not have been dismissed under Heck v.
Humphrey, 512 U.S. 477 (1994). He has not shown, however, that
his claims would not necessarily imply the invalidity of his
conviction. Therefore, the district court did not err. See
Heck, 512 U.S. at 486-87; Hamilton v. Lyons, 74 F.3d 99, 102 (5th
Cir. 1996).
Vidales’s appeal is without arguable merit and is dismissed
as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5TH CIR. R. 42.2. The district court’s dismissal of
Vidales’s complaint as frivolous and the dismissal of his appeal
as frivolous count as two strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). We previously dismissed one of Vidales’s appeals as
frivolous in which the district court had also dismissed the
complaint as frivolous. See Vidales v. Lantern Square
Apartments, No. 96-20201 (5th Cir. June 25, 1996)(unpublished).
As Vidales has accumulated at least four strikes, he is 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) SANCTION IMPOSED; ALL
OUTSTANDING MOTIONS DENIED.

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