Conference Calendar JORGE TREJO MONTERO v. JUDGE CAROL GDAVIS, 177th District Court, Harris County, Texas

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-20745
Conference Calendar
JORGE TREJO MONTERO
Plaintiff-Appellant
v.
JUDGE CAROL G DAVIS, 177th District Court, Harris County, Texas
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CV-1818
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Jorge Trejo Montero, Texas prisoner # 1017932, appeals the dismissal of
his pro se, in forma pauperis (IFP) 42 U.S.C. § 1983 complaint as frivolous. In
his complaint, he averred that state district court judge Carol G. Davis denied
him due process by finding that his second state habeas application was
successive and recommending dismissal of the application on that basis.
Montero sought a declaration that the application was not successive and an
order directing the state courts to allow him to file a state habeas application
United States Court of Appeals
Fifth Circuit
F I L E D
June 19, 2008
Charles R. Fulbruge III
Clerk

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No. 07-20745
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challenging the finding that he used or exhibited a deadly weapon. An IFP
complaint may be dismissed as frivolous pursuant to 28 U.S.C.§ 1915(e)(2)(B)(i)
if it has no arguable basis in law or fact. Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997). A dismissal under § 1915(e)(2)(B)(i) is reviewed for abuse of
discretion. Id.
Montero first avers that the district court erred in finding that he was not
entitled to proceed under the Declaratory Judgment Act (DJA). He contends
that he had a “right” to proceed under the DJA and should not have been
“forced” to seek relief under § 1983. Montero is incorrect. Unless the request for
declaratory relief is tied to another cause of action within the jurisdiction of the
federal court, it must be dismissed. Earnest v. Lowentritt, 690 F.2d 1198, 1203
(5th Cir. 1982). Had Montero sought to proceed under the DJA alone, the
district court would have lacked federal subject matter jurisdiction over the
complaint.
Montero avers that the district court erred in finding that he failed to show
the existence of an actual controversy so as to have standing to proceed under
the DJA. The Texas Court of Criminal Appeals dismissed Montero’s application
as successive, not Judge Davis. Thus, Montero has failed to show an actual
controversy existed between him and Judge Davis. See Johnson v. Onion, 761
F. 2d 224, 225 (5th Cir. 1985).
Montero’s appeal is without arguable merit and, 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. Montero is cautioned that the
dismissal of this appeal as frivolous counts as a strike under § 1915(g), as does
the district court’s dismissal of his complaint as frivolous. See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). He, therefore, has two strikes
under § 1915(g). Montero is cautioned that if he accumulates three strikes
under § 1915(g), he will not be able to proceed IFP in any civil action or appeal

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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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