1Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to this Rule, the Court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10119

Summary Calendar

_____________________

STANLEY J. STEVENS,

Plaintiff-Appellant,

versus

HAY'S PHARMACY (OWNER) (IND.),

ET AL.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:95 CV 14 A)

_________________________________________________________________

(April 14, 1995)

Before JOHNSON, BARKSDALE, and PARKER, Circuit Judges. 

JOHNSON, Circuit Judge:1 

Stanley J. Stevens ("Stevens") appeals the district court's

dismissal of his section 1983 claim against Hay's Pharmacy; Douglas

Burns, pharmacist; the Forth Worth Police Department; Officer

Combs, a Fort Worth Police officer; the State of Texas; and the

Tarrant County Sheriff's Department ("Defendants"). Because we

agree with the district court that Stevens' claims are completely
2

frivolous, we dismiss the appeal. 

I. Facts and Procedural History

Stevens filed this section 1983 suit against the Defendants,

alleging that they conspired in a mutual scheme of entrapment by

accusing him of presenting a forged writing when they knew he had

not done so. On March 26, 1993, Doug Burns, a pharmacist at Hay's

Pharmacy received a phone call. The caller claimed to be a

representative of Dr. Charles Marable's office authorizing a

prescription of Vicodin for Stevens. Burns wrote-up the

prescription from the phone call, but then called Dr. Marable's

office to verify the prescription. No one from Dr. Marable's

office had authorized such a prescription. Burns then contacted

the Fort Worth Police Department. The Police Department instructed

Burns on a plan by which they would apprehend whoever came to pickup the unauthorized prescription. 

Not long thereafter, Stevens arrived to pick-up the

prescription. Officer Combs of the Fort Worth Police Department

arrested Stevens, and Stevens was charged with presenting a forged

writing in order to obtain a controlled substance. Stevens' parole

was revoked.

Stevens denied calling the pharmacy. He claims that he was

under Dr. Marable's care for a back injury and that he was simply

picking-up a prescription that Dr. Marable's office was supposed to

have phoned into the pharmacy. Stevens contends: that he did not

present a forged writing because Burns wrote the prescription, that

the Fort Worth Police Department and the State of Texas knew this
3

and accused and convicted him anyway, and that the State of Texas

coerced him into a plea bargain by providing inadequate counsel. 

Stevens filed suit under section 1983 seeking: to have the

charges dismissed, to have a new trial, to be released from

confinement, to be provided adequate counsel, and to be awarded

monetary damages from all defendants. The district court dismissed

Stevens' action as frivolous under 28 U.S.C. § 1915(d). Because we

believe that Stevens' appeal is completely lacking in merit, we

dismiss the appeal as well. 

II. Discussion

A district court may dismiss an in forma pauperis complaint if

it is frivolous in that it lacks an arguable basis either in law or

in fact. Denton v. Hernandez, 112 S. Ct. 1728, 1733-34 (1992). A

complaint is legally frivolous if it is based on an "indisputably

meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325

(1989). A section 1915(d) dismissal is reviewed for an abuse of

discretion. Denton, 112 S. Ct. at 1734.

Section 1983 is not a vehicle through which to recover damages

for a conviction which has not been invalidated. The Supreme Court

has stated that to recover damages for an allegedly

unconstitutional conviction or imprisonment, or for other harm

caused by actions whose unlawfulness would render a conviction or

sentence invalid, a section 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal or

otherwise called into question. Heck v. Humphrey, 114 S. Ct. 2364,

2372 (1994). Additionally, section 1983 cannot be used as a
 

2When a section 1983 complaint is really a habeas corpus

petition in disguise, this Court will require that the habeas

corpus procedural requirements, such as state remedy exhaustion, be

met. See McGrew v. Texas Bd. of Pardons & Paroles, ____ F.3d ____,

(5th Cir. Mar. 13, 1994 No. 94-10674 ).

4

substitute vehicle to overturn convictions and sentences when state

remedies have not been exhausted. See id. at 2369-70.2 

Stevens' original conviction remains wholly intact. In fact,

Stevens has admitted in the record that he has not challenged his

conviction in any other state court nor federal proceedings.

Stevens has not proven his conviction invalid nor exhausted his

state remedies in trying to so prove. Therefore, Stevens' section

1983 action is without arguable basis in law or fact and is

meritless.

III. Conclusion

Under Local Rule 42.2, this Court can dismiss an appeal as

meritless when it is so frivolous as to be lacking an arguable

basis in law or fact. Because this is just such a case of

frivolity, the appeal is dismissed and Mr. Stevens is warned that

similar frivolous appeals in the future will result in disciplinary

sanctions.

APPEAL DISMISSED.