* 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that this opinion should not be published and is not precedent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. 01-30787

Conference Calendar

 

DONNIE LEE THOMAS,

Plaintiff-Appellant,

versus

RICHARD L. STALDER; PEGGY LANDRY; GRETCHEN MCCARSTEL; 

JOHN DOES, 1-5; JANE DOES, 1-5; FRED Y. CLARK; 

BILL TUGGLE; HENRY L. GOINES; LOUISIANA DEPARTMENT 

OF PUBLIC SAFETY; LOUISIANA DEPARTMENT OF PROBATION 

& PAROLE; DON HATHAWAY, 

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 01-CV-515

- - - - - - - - - -

February 20, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Donnie Lee Thomas, Louisiana prisoner #106606, appeals the

dismissal without prejudice of his complaint filed pursuant to 42

U.S.C. § 1983. The district court determined that Thomas’s civil

rights complaint should be dismissed as frivolous for failure to

satisfy Heck v. Humphrey, 512 U.S. 477 (1994), and that insofar
No. 01-30787

-2-

as his complaint could be construed as a federal petition for

habeas corpus relief, it should be dismissed for failure to

exhaust state-court remedies. 

Thomas’s motions for appointment of counsel are DENIED.

Thomas challenges the district court’s reliance on Heck. 

Because, however, a judgment in Thomas’s favor would necessarily

imply the invalidity of the revocation of his release and the

resulting loss of good-time credits, his claims for declaratory

relief and monetary damages fall within the parameters of Heck. 

See Edwards v. Balisok, 520 U.S. 641, 647-48 (1997). 

Accordingly, the district court did not abuse its discretion in

dismissing the civil rights action. See Norton v. Dimazana, 122

F.3d 286, 291 (5th Cir. 1997). 

The district court also determined “that with respect to the

possible petition for habeas corpus,” Thomas’s petition should be

dismissed without prejudice for failure to exhaust state-court

remedies. Thomas offers no convincing argument that the district

court erred in reaching this conclusion.

The district court dismissed Thomas’s complaint without

prejudice; however, because the complaint is premature under

Heck, the dismissal should have been with prejudice. Boyd v.

Biggers, 31 F.3d 279, 283-84 (5th Cir. 1994). Although there is

no cross-appeal, the dismissal of Thomas’s 42 U.S.C. § 1983

complaint is MODIFIED from “without prejudice” to “with prejudice

as frivolous” pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See

Marts v. Hines, 117 F.3d 1504, 1505-06 (5th Cir. 1997)(en banc).
No. 01-30787

-3-

Thomas’s appeal is without merit and therefore 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 the present case and our

dismissal of this appeal count as two strikes against Thomas for

purposes of 28 U.S.C. § 1915(g). We caution Thomas that once he

accumulates three strikes, he may not 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 28 U.S.C. § 1915(g). 

APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.