IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40385

Summary Calendar

DAVID MARK HARDY,

Plaintiff-Appellant

v.

ERNEST GONZALEZ, Assistant United States Attorney; ROBERT GERARD 

ARAMBIDE, Public Defender; TOMMY MOORE, Paris Police Department; 

ANSEN AMIS, Lamar County Sheriff's Deputy; MIKE BOAZ, NLISD resource 

officer; HAROLD MCCLURE, Sulphur Springs Police Department; 

BRITTANY JUANITZ INGRAM, Lamar County resident; MICHAEL LUTZ, 

Immunized co-conspirator; DOES (NUMBERS 1-25),

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:12-CV-766

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

David Mark Hardy, federal prisoner # 14486-078, proceeding pro se and 

in forma pauperis, appeals the district court’s dismissal of his civil action 

raising claims allegedly arising under the Racketeering Influenced and 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 14, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-40385 Document: 00512500334 Page: 1 Date Filed: 01/14/2014
No. 13-40385

Corrupt Organizations Act (RICO), 18 U.S.C. § 1961. Hardy was convicted by 

a jury of conspiracy to possess with intent to manufacture or distribute 500 

grams or more of a mixture or substance containing a detectable amount of 

methamphetamine, and he was sentenced to 360 months of imprisonment. His 

conviction and sentence were affirmed on direct appeal. United States v.

Hardy, 393 F. App’x 205 (5th Cir. 2010). His 28 U.S.C. § 2255 motion was 

denied by the district court on October 12, 2012. Hardy v. United States, 2012 

WL 4863155 (E.D. Tex. 2012).

On November 1, 2012, Hardy filed this civil action against various people 

involved in his prosecution and conviction, alleging that the defendants 

“knowingly participated in offenses involving fraud connected with a case 

under Title 11, some of whose actions caused a sequence of events which forced 

HARDY and his wife into bankruptcy under Chapter 7, then corruptly, through 

acts of racketeering, attempted to cover it up.” Hardy filed bankruptcy in 

February 2006. His bankruptcy was discharged on April 6, 2006. Hardy was 

tried and convicted in November 2008. He alleged that the actions of the 

defendants to prosecute him for a non-existent offense made them liable for his 

bankruptcy.

The district court determined that because Hardy had sued people 

associated with his conviction, and because the events occurring from 2005 to 

2008 described in Hardy’s complaint as violating RICO also resulted in his 

conviction, “a judgment in Hardy’s favor would necessarily imply the invalidity 

of his conviction.” The district court dismissed the complaint for failure to state 

a claim under 28 U.S.C. § 1915A(b)(1) as barred by Heck v. Humphrey, 512 

U.S. 477 (1994), because Hardy had not shown that his conviction had been 

invalidated. The district court further determined that even if Heck did not 

bar some of his claims, his claims would still have to be dismissed under the 

2

 Case: 13-40385 Document: 00512500334 Page: 2 Date Filed: 01/14/2014
No. 13-40385

two year statute of limitations, noting that the complained of events occurred 

in 2005 to 2008 and that his lawsuit filed in November 2012 was too late.

Hardy argues that the district court erred in dismissing his RICO claims 

as time barred by applying the two year personal injury statute of limitations. 

He notes that he filed his complaint on November 1, 2012, and he contends 

that the district court erred in using the date his complaint was docketed, 

November 26, 2012. He argues that a four year statute of limitations with an 

“injury discovery” accrual rule applies to his civil RICO claims, citing Rotella 

v. Wood, 147 F.3d 438 (5th Cir. 1998), affirmed by, 528 U.S. 549 (2000).

A dismissal for failure to state a claim upon which relief may be granted 

under § 1915A is reviewed under the same de novo standard as a dismissal 

under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren, 134 F.3d 732, 

733-34 (5th Cir. 1998).

Hardy is correct that the mailbox rule applies and that the filing date of 

his complaint was November 1, 2012. See Cooper v. Brookshire, 70 F.3d 377, 

379-80 (5th Cir. 1995) (applying mailbox rule to prisoner’s pro se civil rights 

complaint). Hardy certified that he delivered his complaint to prison 

authorities on November 1, 2012. He is also correct that a four year statute of 

limitations applies to civil RICO claims, and that such claims accrue when the 

injury is discovered. See Rotella, 528 U.S. at 552-55. However, if Heck applies 

to Hardy’s claims, the statute of limitations issue need not be decided. See

Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994) (noting that if Heck

applies, the claims have not yet accrued and so the statute of limitations is not 

a concern).

In Heck v. Humphrey, the Supreme Court held that, in order to recover 

damages for an allegedly unconstitutional conviction, or for “harm caused by 

actions whose unlawfulness would render a conviction or sentence invalid,” a 

3

 Case: 13-40385 Document: 00512500334 Page: 3 Date Filed: 01/14/2014
No. 13-40385

prisoner must show 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.” 512 U.S. at 486-87. We applied 

Heck in Stephenson v. Reno, 28 F.3d at 27, a case in which a federal prisoner 

alleged civil rights violations and civil RICO claims. We determined that 

Stephenson’s civil rights action constituted a challenge to the fact or length of 

his confinement and was barred by Heck. 28 F.3d at 27-28.

A close reading of his complaint shows that Hardy’s RICO claims were 

focused on recovering damages for the loss of his employment and his 

bankruptcy, and that he was not seeking to invalidate his conviction. Whether 

a judgment in Hardy’s favor necessarily implies the invalidity of his conviction 

under Heck is not clear. Assuming arguendo that Hardy’s civil RICO claims 

are not barred by Heck, they are untimely, even applying the four year statute 

of limitations. Hardy alleged repeatedly that his injury was the loss of his 

employment and his bankruptcy, which occurred in 2005 and 2006. Applying 

the “injury discovery” rule for civil RICO claims adopted in Rotella, Hardy had 

four years from, at the latest, April 6, 2006, the date of discharge of his 

bankruptcy. Although Hardy argues that a “separate accrual” rule should 

apply, he does not identify any injury subsequent to the date of his bankruptcy 

in 2006. Thus, even applying the four year statute of limitations, Hardy’s 

RICO claims in his complaint filed on November 1, 2012, are time barred. The 

district court did not err in dismissing Hardy’s complaint under § 1915A(b)(1). 

See Black, 134 F.3d at 733-34.

Hardy’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 

4

 Case: 13-40385 Document: 00512500334 Page: 4 Date Filed: 01/14/2014
No. 13-40385

and the district court’s dismissal count as strikes for purposes of 28 U.S.C. 

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). 

Hardy is cautioned that once he accumulates three strikes, he may not 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).

APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING 

ISSUED.

5

 Case: 13-40385 Document: 00512500334 Page: 5 Date Filed: 01/14/2014