Ortiz v. Brown

Fifth Circuit

Ortiz v. Brown

105 F. App'x 607

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 18, 2004

Docket04-40456

StatusUnpublished

Cited by1 cases

This text of 105 F. App'x 607 (Ortiz v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ortiz v. Brown, 105 F. App'x 607 (5th Cir. 2004).

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Opinion

PER CURIAM: *

Marcos Ortiz (Ortiz), Texas prisoner # 1049113, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous. Ortiz was convicted of aggravated robbery and aggravated assault. He filed his 42 U.S.C. § 1983 complaint against his court-appointed attorney and investigator in that criminal proceeding. Ortiz argues that his attorney and investigator conspired to deny him due process and deprive him of equal protection by failing to investigate his case. He contends that an investigation of the case would have shown that the charges against him were fabricated.

Ortiz’s allegations are ones alleging “harm caused by actions whose unlawfulness would render a conviction or sentence invalid.” See Heck v. Humphrey, 512 U.S. 477, 486, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Under Heck, Ortiz’s allegations are not actionable because he has not shown that his conviction has been reversed on direct appeal, expunged by the executive, invalidated by other state means, or called into question by the issuance of a federal habeas writ. Id. at 487, 114 S.Ct. 2364.

Accordingly, Ortiz’s appeal is dismissed as frivolous. See 5th Cir. R. 42.2. The dismissal of his complaint and appeal in this matter each count as a “strike” under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Ortiz has accumulated at least two other “strikes.” See Ortiz v. Fernald, No. 04-20186, 2004 WL 1372935 (5th Cir. June 18, 2004) (unpublished). Thus, Ortiz is BARRED from proceeding 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 AS FRIVOLOUS; 28 U.S.C. § 1915(g) SANCTIONS IMPOSED.

*

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.

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PER CURIAM: *

Marcos Ortiz (Ortiz), Texas prisoner # 1049113, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous. Ortiz was convicted of aggravated robbery and aggravated assault. He filed his 42 U.S.C. § 1983 complaint against his court-appointed attorney and investigator in that criminal proceeding. Ortiz argues that his attorney and investigator conspired to deny him due process and deprive him of equal protection by failing to investigate his case. He contends that an investigation of the case would have shown that the charges against him were fabricated.

Ortiz’s allegations are ones alleging “harm caused by actions whose unlawfulness would render a conviction or sentence invalid.” See Heck v. Humphrey, 512 U.S. 477, 486, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Under Heck, Ortiz’s allegations are not actionable because he has not shown that his conviction has been reversed on direct appeal, expunged by the executive, invalidated by other state means, or called into question by the issuance of a federal habeas writ. Id. at 487, 114 S.Ct. 2364.

Accordingly, Ortiz’s appeal is dismissed as frivolous. See 5th Cir. R. 42.2. The dismissal of his complaint and appeal in this matter each count as a “strike” under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Ortiz has accumulated at least two other “strikes.” See Ortiz v. Fernald, No. 04-20186, 2004 WL 1372935 (5th Cir. June 18, 2004) (unpublished). Thus, Ortiz is BARRED from proceeding 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 AS FRIVOLOUS; 28 U.S.C. § 1915(g) SANCTIONS IMPOSED.

*

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.

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