Miley v. Rylander

* 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that this opinion should not be published and is not precedent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. 99-50884
Conference Calendar
BENTON G. MILEY, III,
Plaintiff-Appellant,
versus
CAROLE KEETON RYLANDER,
Comptroller of Public Accounts,
State of Texas, in Her Official Capacity,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-99-CV-452-JN
--------------------
February 16, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Benton G. Miley III, TDCJ #775702, filed a 42 U.S.C. § 1983
action, seeking a declaratory judgment that the Texas drug tax
was a punishment for purposes of the Double Jeopardy Clause. The
claim is not cognizable in a § 1983 action unless the challenged
conviction has been invalidated because the action necessarily
implies the invalidity of the conviction. See Edwards v.

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No. 99-50884
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Balisok, 540 U.S. 641, 648 (1997); Heck v. Humphrey, 512 U.S.
477, 486-87 (1994); Clarke v. Stalder, 154 F.3d 186, 190 (5th
Cir. 1998), cert. denied, 119 S. Ct. 1052 (1999). Miley’s appeal
is frivolous and is DISMISSED as such. See 5TH CIR. R. 42.2.
Miley is warned that the dismissals of his claim by the
district court for failure to state a claim and of his appeal by
this court as frivolous count as two strikes for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996)(“[D]ismissals as frivolous in the district courts
or the court of appeals count [as strikes] for the purposes of
[§ 1915(g)].”). We caution Miley that once he accumulates three
strikes, he may not 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. SANCTIONS WARNING ISSUED.

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