* 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that this opinion should not be published and is not precedent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. 02-10018

Conference Calendar

 

KEITH L. SOMERVILLE,

Plaintiff-Appellant,

versus

ELTON BOMER, Secretary of State;

EARL BULLOCK, County Clerk; JIM HAMLIN,

District Clerk; DAVID CHILDS, Assessor/collector;

JIM BOWLES, Sheriff; DIRECTOR OF PUBLIC SAFETY,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:01-CV-1455-X

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

August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

Keith L. Somerville (Texas prisoner #529020) appeals the

district court’s dismissal of his civil rights complaint as

frivolous under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i). 

His complaint alleged that the jury-panel-selection process in

Dallas County, Texas, systematically excluded African Americans

and Hispanics from participation and sought the following relief: 
No. 02-10018

-2-

(1) damages in the amount of $18,000,000, (2) a declaration that

the jury-panel-selection process in Dallas County is

unconstitutional, (3) new trials for all litigants who have lost

civil damages cases in Dallas County, (4) an overhaul of the

present jury-panel-selection process by allowing more African

Americans and Hispanics to participate, (5) the invalidation of

his Texas conviction for burglary of a habitation, and (6) new

trials for others who have been convicted in Dallas County. 

Somerville argues that the district court abused its discretion

in dismissing his complaint as frivolous. See Berry v. Brady,

192 F.3d 504, 507 (5th Cir. 1999).

Somerville does not challenge the district court’s

conclusion that he lacked standing to seek monetary and

declaratory relief for claims unrelated to his current Texas

burglary conviction. He has waived any challenge to that

conclusion by failing to brief it. See Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1993). With regard to his claims and

requested relief stemming from his current burglary conviction,

which his complaint sought to have “thrown out,” Somerville has

not shown that the conviction has been overturned or invalidated

or that his requests for relief are not so intertwined that a

favorable ruling on one of them would necessarily imply the

invalidity of his conviction. See Clarke v. Stalder, 154 F.3d

186, 189-90 (5th Cir. 1998)(en banc). Accordingly, he has not

shown that the district court erred in determining that the
No. 02-10018

-3-

claims were premature under Heck v. Humphrey, 512 U.S. 477

(1994), or that the court abused its discretion in dismissing his

complaint as frivolous. See Berry, 192 F.3d at 507; Clarke, 154

F.3d at 189-91.

Somerville’s appeal is frivolous and is therefore DISMISSED. 

See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR.

R. 42.2. The district court’s dismissal of his complaint as

frivolous and the dismissal of this appeal as frivolous each

count as a strike for the purposes of 28 U.S.C. § 1915(g). See

Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). We

caution Somerville that, by accumulating three strikes under 28

U.S.C. § 1915(g), he will not be able to 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; 28 U.S.C. § 1915(g) WARNING ISSUED.