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. 09-20742

Summary Calendar

LADAVID B. TAYLOR,

Plaintiff-Appellant

v.

RICHARD A. GUNNELS, Assistant Warden; MARKETE MILLER, Sergeant;

THOMAS L. HUTT, Captain; LINCOLN E. CLARK, Disciplinary Captain;

DONALD E. MUNIZ, Major; LAWRENCE DAWSON, JR., Captain; KRISTEN

L. GIBSON, Case Manager II; TRACY D. PUCKETT, Sergeant; NATHANIEL

QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CV-3068

Before REAVLEY, JOLLY, and OWEN, Circuit Judges.

PER CURIAM:*

LaDavid B. Taylor, Texas prisoner # 938697, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 action, which challenged a prison disciplinary

proceeding in which he lost good-time credits, for failure to state a claim. Taylor

United States Court of Appeals

Fifth Circuit

F I L E D

May 18, 2010

Lyle W. Cayce

Clerk

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No. 09-20742

2

argues that the district court erred by holding that his claims are barred by Heck

v. Humphrey, 512 U.S. 477 (1994). He contends that Heck does not bar

challenges to prison disciplinary proceedings.

We review the dismissal of a complaint pursuant to 28 U.S.C. § 1915A de

novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). Under Heck, 512

U.S. at 486-87, when a state prisoner whose conviction or sentence has not been

declared invalid seeks damages in a § 1983 suit and a judgment in favor of the

plaintiff would necessarily imply the invalidity of his conviction or sentence, the

suit must be dismissed. For purposes of Heck, the term “conviction” includes

prison disciplinary decisions that result in the loss of good-time credits. Clarke

v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc).

Here, Taylor asserted that his constitutional rights had been violated

because the disciplinary rule that he was found guilty of violating was

unconstitutionally vague and there was no evidence to support the charge. He

sought monetary damages and to have the allegedly false disciplinary report

expunged from his record. If Taylor’s claims are credited, they necessarily imply

that the finding of guilt and the punishment for the violation were invalid.

Because he has not shown that the disciplinary decision has been overturned,

he cannot maintain a § 1983 action for damages or the expungement of the

disciplinary report from his record. See Edwards v. Balisok, 520 U.S. 641, 648

(1997); Heck, 512 U.S. at 486-87; Clarke, 154 F.3d at 189. Accordingly, the

district court did not err in dismissing Taylor’s complaint for failure to state a

claim.

Taylor’s appeal is without arguable merit and 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. The dismissal of this appeal as frivolous counts

as a strike under § 1915(g), as does the district court’s dismissal of Taylor’s

complaint. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

Taylor is cautioned that, if he accumulates three strikes under § 1915(g), he will

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not be permitted to 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 § 1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.

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