* 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that this opinion should not be published and is not precedent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. 00-40798 

Conference Calendar

 

JESSE JOE SOLIZ,

Plaintiff-Appellant,

versus

STEVE LINAM; BOB CLAY; VICTORIA POLICE DEPARTMENT,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. V-00-CV-41

--------------------

April 11, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Jesse Joe Soliz, Texas prisoner # 530640, has filed an

application for leave to proceed in forma pauperis (IFP) on

appeal, following the district court’s dismissal of his 42 U.S.C.

§ 1983 complaint. By moving for IFP, Soliz is challenging the

district court’s certification that IFP should not be granted on

appeal because his appeal is not taken in good faith. See Baugh

v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

The district court held that the police officers were immune

from liability for any testimony at trial based on absolute
No. 00-40798

-2-

immunity for witnesses. The district court held that to the

extent Soliz was challenging his conviction, his claims were

barred under Heck v. Humphrey, 512 U.S. 477 (1994), and he must

challenge his conviction in a habeas corpus proceeding. The

district court held that the remainder of his claims were timebarred because they occurred more than two years before the

action was filed. Soliz argues on appeal that Heck does not

apply to his allegations regarding the false aggravated assault

charge because he was found not guilty by the jury on that

charge.

The arguments in Soliz’ brief make it clear that he is

attempting to challenge his conviction in this § 1983 action. “A

section 1983 claim that effectively attacks the constitutionality

of a conviction or imprisonment does not accrue until that

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.” Hudson

v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996) quoting Heck, 512

U.S. at 486-87. The district court correctly held that any

claims arising out of his conviction for possession of controlled

substances are barred by Heck.

To the extent that Soliz is correct that Heck does not bar

his claims against the officers for allegedly making false

accusations of aggravated assault, and to the extent that those

claims arise out of actions taken by the police officers which

fall outside the scope of their testimony at trial and thus are
No. 00-40798

-3-

not barred by witness immunity, the claims are still time-barred. 

The events in question occurred in 1989. Soliz did not file this

action until 2000. For § 1983 claims, federal courts apply the

general personal injury statute of limitations of the forum

state. Owens v. Okure, 488 U.S. 235, 249-50 (1989). The

applicable statute of limitations in Texas is two years. Cooper

v. Brookshire, 70 F.3d 377, 380 n.20 (5th Cir. 1995); see Tex.

Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon’s Supp. 2001). 

Soliz does not challenge the district court’s holding that all of

his remaining claims not barred by Heck or immunity are timebarred.

Accordingly, we uphold the district court’s order certifying

that the appeal presents no nonfrivolous issues. Soliz’ request

for IFP status is DENIED, and his appeal is DISMISSED as

frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

Soliz is hereby informed that the dismissal of this appeal

as frivolous counts as a strike for purposes of 28 U.S.C.

§ 1915(g), in addition to the strike for the district court’s

dismissal. 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 Soliz 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 28

U.S.C. § 1915(g).

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.