Galer v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50021 Conference Calendar

RUSSELL EUGENE GALER, II,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-99-CV-305 -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Russell Eugene Galer II, Texas prisoner #315395, seeks leave

to proceed in forma pauperis (IFP) on appeal following the

district court’s certification that his appeal is taken in bad

faith. Galer argues that Heck v. Humphrey, 512 U.S. 477 (1994),

is inapplicable to his case because his claim challenging

revocation of his parole or mandatory supervision is cognizable

under 42 U.S.C. § 1983. Galer’s motion to file a supplemental

brief in support of his motion is GRANTED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-50021 -2-

Heck bars Galer’s revocation contention. Littles v. Bd. of

Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995).

Galer’s appeal is frivolous. His IFP motion is DENIED and his

appeal is DISMISSED.

The dismissal of this appeal as frivolous counts as a

“strike” for purposes of 28 U.S.C. § 1915(g), as does the

district court’s dismissal of Galer’s complaint for failure to

state a claim. See Adepegba v. Hammons, 103 F.3d 383, 385-87

(5th Cir. 1996). Galer therefore has two “strikes” under 28

U.S.C. § 1915(g). Galer is warned that if he accumulates three

“strikes” pursuant to 28 U.S.C. § 1915(g), he 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).

IFP DENIED; APPEAL DISMISSED. 5TH CIR. R. 42.2.