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. 09-40522

Summary Calendar

JED STEWART LINEBERRY,

Plaintiff-Appellant

v.

ANDREW STOVER, Assistant U.S. Attorney, (Individual Capacity); DANIEL

PAUL MEADE, ATF Agent, (Individual Capacity),

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:09-CV-57

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Jed Stewart Lineberry, federal prisoner # 10296-078, is appealing the

district court’s dismissal of his civil rights complaint for failure to state a claim

and for being frivolous based on Heck v. Humphrey, 512 U.S. 477 (1994).

Lineberry argues that he should have been allowed to file his objections to the

magistrate judge’s report and recommendation of dismissal after the ten-day

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2009

Charles R. Fulbruge III

Clerk
No. 09-40522

2

deadline for doing so because he was placed in segregation and denied access to

all legal materials.

Lineberry admitted that he received notice of the magistrate judge’s report

on March 27, 2009, and he did not seek an extension of time to file his objections

until several days after the district court entered a judgment of dismissal on

April 15, 2009. Thus, Lineberry had the opportunity to timely file a motion for

extension of time, and he failed to do so until after the case was dismissed.

Additionally, in the motion he filed after dismissal, he failed to state any

meritorious objections to the magistrate’s report. The district court did not

abuse its discretion in denying the motion for extension of time to file objections.

FED. R. CIV. P. 6(b).

Lineberry further argues that he is entitled to damages because he was

charged and prosecuted for being a felon in possession of a firearm based on the

false testimony of an agent and his former wife. He contends that the prosecutor

did not disclose a Memorandum Agreement to the defense that could have been

used to impeach the trial testimony of his former wife in violation of Brady v.

Maryland, 373 U.S. 83 (1963).

A district court may dismiss a prisoner's complaint if the action is frivolous

or malicious or fails to state a claim. See 28 U.S.C. § 1915A. We review the

district court’s dismissal de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.

2005).

If Lineberry’s allegations are proved to be true, they could undermine the

validity of his conviction for being a felon in possession of a firearm. Pursuant

to Heck, he is barred from seeking relief until he demonstrates that his

conviction has been reversed or other wise invalidated. Heck, 512 U.S. at 486-

87; Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994). He has not done so.

Thus, the district court did not err in dismissing the complaint for failure to

state a claim and as frivolous.
No. 09-40522

3

Lineberry’s appeal is without arguable merit and is thus 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 district court’s dismissal of

Lineberry’s civil rights lawsuit and this court’s dismissal of this appeal count as

two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996). Lineberry received a third strike as a result of this

court’s dismissal as frivolous of his appeal in Lineberry v. U.S., No. 09-10360

(5th Cir. 2009). Lineberry is therefore barred from proceeding 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; 28 U.S.C. § 1915(g) BAR IMPOSED