Reece v. Golden

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-50600 Conference Calendar

LEE ALLEN REECE,

Plaintiff-Appellant,

versus

MARY GOLDEN,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-96-CV-110 - - - - - - - - - - April 17, 1997 Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Lee Allen Reece, Texas prisoner #636526, appeals from the

dismissal of his civil rights action as frivolous. Reece is

GRANTED leave to proceed in forma pauperis (IFP) on appeal. We

assess an initial partial filing fee of $4.16 on Reece. 28

U.S.C. § 1915(b)(1). After collection of the initial partial

filing fee, Reece is required to make monthly payments of twenty

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-50600 - 2 -

percent of the preceding month’s income credited to his account, No. 96-50600 - 3 -

until he has paid the entire $105 appellate filing fee.

§ 1915(b)(2).

IT IS ORDERED that Reece pay the appropriate initial partial

filing fee to the clerk of the District Court for the Western

District of Texas. IT IS FURTHER ORDERED that the agency having

custody of Reece’s inmate account shall collect the remainder of

the $105 filing fee and forward for payment, in accordance with

§ 1915(b)(2), to the Clerk of the District Court for the Western

District of Texas each time the amount in Reece’s account exceeds

$10, until the appellate filing fee is paid.

Reece contends that the district court erred by dismissing

his complaint as frivolous. He argues that he was retaliated

against and that Heck v. Humphrey, 512 U.S. 477 (1994), does not

bar his case because his conviction has been overturned.

The dismissal of Reece’s complaint as frivolous was not an

abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 31-33

(1992). Reece argued retaliation in the district court but

provided no specific allegations indicating a retaliatory

motivation. See Whittington v. Lynaugh, 842 F.2d 818, 819-20

(5th Cir. 1988). None of Reece’s contentions would have

undermined the validity of his conviction; Heck is inapplicable

to Reece’s case. See Heck, 512 U.S. at 487. Reece’s appeal is

without arguable merit and is frivolous. Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983). His appeal therefore is

dismissed. Finally, Reece’s motion for appointment of counsel is No. 96-50600 - 4 -

DENIED.

APPEAL DISMISSED. 5TH CIR. R. 42.2.