* 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that this opinion should not be published and is not precedent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. 02-20322 

Conference Calendar

 

WARREN PIERRE CANADY,

Plaintiff-Appellant,

versus

M. BRUCE THALER; CARY STAPLES; C.A. WILLIAMS; 

C.T. SPIVEY, Captain; ERIK BURSE; E.W. BROCK, Major;

TROY WEDGEWORTH; WILLIAM R. DURHAM; B. WEST, Captain;

ENOS H. HARRIS; CHRISTOPHER BROWN,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-02-CV-445

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

August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges. 

PER CURIAM:*

Warren Pierre Canady, Texas prisoner # 723784, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 action. 

Canady argues that the district court abused its discretion in

dismissing his complaint because he had only two strikes against

him under 28 U.S.C. § 1915(g) and because the sanction of

dismissal was too severe. We affirmed the district court’s 
No. 02-20322

-2-

previous sanction order. Canady v. Scott, No. 99-20345 (5th Cir.

Mar. 23, 2000). The district court’s enforcement of the sanction

by dismissing this case for failure to comply with the sanction

order was not an abuse of discretion.

Canady argues that his claims would not have been timebarred because his cause of action did not arise until November

15, 2001, when his state cause of action was dismissed. He is

contending that he was required to exhaust state remedies before

filing this 42 U.S.C. § 1983 action, and that the statute of

limitations was tolled while he exhausted his claims in state

court.

Exhaustion of state habeas remedies is not a prerequisite

for filing a 42 U.S.C. § 1983 action. Hudson v. Hughes, 98 F.3d

868, 873 (5th Cir. 1996). To the extent that Canady’s claims

were in effect habeas claims because they involved the loss of

good-time credits after a disciplinary proceeding, Canady’s

claims have not accrued yet because he does not allege that his

disciplinary cases have been reversed, expunged, or otherwise

declared invalid. See Heck v. Humphrey, 512 U.S. 477, 486-87

(1994); Edwards v. Balisok, 520 U.S. 641, 647-48 (1997) (applying

Heck to 42 U.S.C. § 1983 claims for damages for challenges to the

procedures used in prison disciplinary proceedings if a favorable

judgment would necessarily imply the invalidity of the prisoner’s

“conviction” in the disciplinary proceeding or the length of the

prisoner’s confinement).
No. 02-20322

-3-

Canady’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.

Canady has two strikes under 28 U.S.C. § 1915(g). Canady v.

Washington, No. 96-CV-1756 (S.D. Tex. Oct. 29, 1996) (dismissed

pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994));

Canady v. Scott, No. 99-20345 (5th Cir. Mar. 23, 2000)(affirming

the district court’s dismissal for frivolousness). Canady is

hereby informed that the dismissal of this appeal as frivolous

counts as his third strike for purposes of 28 U.S.C. § 1915(g). 

Canady 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).

APPEAL DISMISSED AS FRIVOLOUS; SANCTION IMPOSED.