* 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that this opinion should not be published and is not precedent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

October 21, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-20515

Conference Calendar

 

PETE VARDAS, JR.,

Plaintiff-Appellant,

versus

A.M. (MAC) STRINGFELLOW, Chairman 

Texas Board of Criminal Justice; TEXAS BOARD

OF PARDONS & PAROLES; GARY L. JOHNSON,

Executive Director, Texas Department

of Criminal Justice,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-03-CV-29

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

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

Pete Vardas, Jr., Texas prisoner #486166, appeals the

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

lawsuit for failure to state a claim, pursuant to 28 U.S.C. 

§ 1915(e)(2)(B)(ii). The district court’s dismissal is reviewed

de novo. Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998).
No. 03-20515

-2-

Vardas renews his challenge to the reduced time-earning

classification he received as a penalty for a prison disciplinary

conviction and contends that the district court’s dismissal under

Heck v. Humphrey, 512 U.S. 477 (1994), was error because he is

not attacking his conviction or sentence but the unconstitutional

denial of parole and the way his sentence is being calculated. 

Vardas’ challenge to his reduced time-earning classification

implicates the validity of his disciplinary conviction, and,

because he has not shown that the proceedings have been

overturned or invalidated, it is barred by Heck. 512 U.S. at

486-87; cf. Edwards v. Balisok, 520 U.S. 641, 648 (1997). 

Even if it is assumed that the Heck bar did not apply,

dismissal of the suit was proper because Vardas has failed to

state a constitutional claim as he has no liberty interest in his

time-earning classification or in parole. See Johnson v. Dallas

Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994); see also

Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995); Madison

v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Consequently,

his due-process claims fail.

Vardas’ appeal is wholly without arguable merit and is

DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983); 5TH CIR. R. 42.2. Both the district court’s

dismissal of his complaint and this court’s dismissal of the

instant appeal count as “strikes” for purposes of 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
No. 03-20515

-3-

1996). Vardas has also acquired at least two other strikes. 

See Vardas v. Texas Dep’t Crim. Justice, No. 95-40059 (5th Cir.

June 30, 1995) (unpublished); see also Vardas v. City of Dallas,

Texas, No. 02-10616 (5th Cir. Nov. 21, 2002) (unpublished). 

Because Vardas has now accumulated more than three strikes, he

is BARRED from proceeding in forma pauperis in any civil action

or appeal 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 BAR IMPOSED.