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that this opinion should not be published and is not precedent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

September 3, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40300 

Summary Calendar

 

JERRY W. WILLIAMS,

Plaintiff-Appellant,

versus

UP MARTINEZ, Individually and in his official capacity as

Secretary of Housing & Urban Development (HUD); WILLIAM

DALEY, General Counsel; YOUNG IMPLEMENTATION OFFICE

DIRECTOR, (YIO); CARMELO MELENDEZ, Individually and in his

official capacity; DAVID PILLEGGI, Senior Investigator;

OFFICE OF INSPECTOR GENERAL, (OIG); DAVE HENDERSON, Assistant

United States Attorney for The Department of Justice (AUSA);

UNIDENTIFIED PARTY, (DOJ) In his individual and official

capacity,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:02-CV-238

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

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Jerry W. Williams, Texas inmate # 1103979, proceeding pro

se and in forma pauperis (“IFP”), appeals the district court’s 28

U.S.C. § 1915(e) dismissal as frivolous and for failure to state a
No. 03-40300

-2-

claim of his complaint filed pursuant to Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 389 (1971). Williams sought damages

for the defendants’ alleged conspiracy, perjury, unlawful search,

prosecutorial misconduct, and selective prosecution that resulted

in Williams’ criminal indictment and conviction.

Williams contends that he is not challenging his

conviction and that his claims are not barred by Heck v. Humphrey,

512 U.S. 477 (1994). In addition, he asserts that the district

court should have allowed him to amend his complaint prior to

dismissal. 

We review de novo the district court’s dismissal of an

IFP complaint for failure to state a claim. Black v. Warren, 134

F.3d 732, 734 (5th Cir. 1998). In our review, we consider that all

of the plaintiff’s factual allegations are true, and we uphold the

dismissal only if it appears that no relief could be granted under

any set of facts that could be proved consistent with the

allegations. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.

1998). We review a dismissal of a complaint as frivolous for an

abuse of discretion. Black, 134 F.3d at 733.

As the district court determined, resolution of Williams’

claims would necessarily imply the invalidity of Williams’

conviction, and Heck, 512 U.S. at 486-87, mandates dismissal

because no cause of action accrues unless and until Williams can

show that he has had his conviction reversed, expunged, declared

invalid, or otherwise called into question by a writ of habeas
No. 03-40300

-3-

corpus, 28 U.S.C. § 2254. See Stephenson v. Reno, 28 F.3d 26, 27-

28 (5th Cir. 1994). Because Williams’ cause of action has not yet

accrued, the district court did not abuse its discretion by

dismissing his complaint without amendment and further

clarification. Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994).

Williams’ appeal is without arguable merit, is frivolous

and is DISMISSED. 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983). The dismissal of this appeal and the

district court’s dismissal of Williams’ complaint count as strikes

under the Prison Litigation Reform Act. Adepegba v. Hammons, 103

F.3d 383, 387 (5th Cir. 1996). Williams is WARNED that if he

accumulates three “strikes” under 28 U.S.C. § 1915(g) he will not

be able to 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. 28 U.S.C.

§ 1915(g). 

APPEAL DISMISSED, SANCTION WARNING ISSUED.