IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60740

Summary Calendar

MAURICE ANTONIO JOHNSON,

Plaintiff-Appellant

v.

JAMES MURRAY, Investigator, Lamar County Sheriff’s Department; RICHARD

COX, Investigator, Lamar County Sheriff’s Department,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:10-CV-92

Before HIGGINBOTHAM, SMITH and HAYNES, Circuit Judges.

PER CURIAM:

*

Maurice Antonio Johnson, Mississippi prisoner # 33122, appeals the

district court’s 28 U.S.C. § 1915(e)(2)(B)(ii) dismissal of his pro se 42 U.S.C.

§ 1983 complaint as barred by Heck v. Humphrey, 512 U.S. 477 (1994). Johnson

argues that his parole was wrongfully revoked based upon Mississippi state

criminal charges arising from allegations that he acted under false pretense in

an attempt to secure items of value from a Walmart. He relies, inter alia, upon

United States Court of Appeals

Fifth Circuit

F I L E D

March 24, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-60740

an order of nolle prosse issued by a Mississippi state court in connection with the

criminal charges related to the Walmart incident to support his argument that

the criminal charges were without factual foundation. He contends that the

revocation of his parole based upon the Walmart incident and his continued

incarceration violate his constitutional rights. Johnson has also filed a motion

for leave to file an amended complaint.

A district court shall dismiss a case at any time if the court determines

that an action fails to state a claim upon which relief may be granted. See

§ 1915(e)(2)(B)(ii). This court employs the same de novo standard to review a

§ 1915(e)(2)(B)(ii) dismissal as is used to review a dismissal pursuant to Federal

Rule of Civil Procedure 12(b)(6). See Bradley v. Puckett, 157 F.3d 1022, 1025

(5th Cir. 1998). “Factual allegations must be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (emphasis and quotation omitted). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). Also, “[t]o recover

damages for allegedly unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence

has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such 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). The rule set forth in Heck applies to a

challenge to the validity of confinement resulting from a parole-revocation

hearing. McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir.

1995).

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Johnson’s claim for damages based upon the revocation of his parole and

his continued incarceration implicates the validity of the revocation hearing.

Johnson does not explicitly argue that the parole revocation has been reversed,

expunged, declared invalid, or called into question by a federal court’s issuance

of a writ of habeas corpus. See Heck, 512 U.S. at 486-87; McGrew, 47 F.3d at

161. The order of nolle prosse is not relevant to the validity of Johnson’s

confinement resulting from the parole revocation hearing. Johnson’s reliance

upon the order of nolle prosse therefore is not persuasive.

Johnson’s appeal is without arguable merit and therefore is 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. Johnson is cautioned that the

dismissal of this appeal as frivolous counts as a strike under § 1915(g), as does

the district court’s dismissal for failure to state a claim. See § 1915(g); Adepegba

v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Johnson therefore has two

strikes under § 1915(g) and he 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

filed while he is incarcerated or detained in any facility unless he “is under

imminent danger of serious physical injury.” See § 1915(g).

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION

WARNING ISSUED; MOTION FOR LEAVE TO AMEND COMPLAINT

DENIED.

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