Thomas v. Thomas

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 12, 2002
• Docket: 02-20405
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20405 Summary Calendar

VINCENT THOMAS,

Plaintiff-Appellant,

versus

J. THOMAS; GARY JOHNSON, Director, TDCJ; KELLIE HUTCHINSON; M. WILSON; J. JACKSON, JOHN DOE SIMPSON; JOHN DOE BAGGETT; JOHN DOE LOSACK; K. NEWTON,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-3245 -------------------- August 8, 2002 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Vincent Thomas, Texas prisoner #586916, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous

and for failure to state a claim pursuant to 28 U.S.C. § 1915A.

Thomas argues that he was denied due process in the disciplinary

hearing in which he was charged with assaulting inmate Kennedy

because the case was based on information from a fictitious

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20405 -2-

confidential informant. He further contends that he sufficiently

alleged a retaliation claim.

In the disciplinary hearing in which Thomas was charged with

assaulting inmate Kennedy, Thomas lost, inter alia, 90 days of

good-time credits. Although the loss of good-time credits may

give rise to a protected constitutional liberty interest, see

Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997), a

prisoner cannot recover good-time credits by way of a 42 U.S.C.

§ 1983 action. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir.

1998)(en banc). Such relief must be sought through a habeas

corpus action. See Preiser v. Rodriguez, 411 U.S. 475, 500

(1973); Clarke, 154 F.3d at 189. Furthermore, if a prisoner is

challenging the validity of the procedures used in a prison

disciplinary proceeding to deprive him of good-time credits and a

favorable judgment would imply the invalidity of the conviction

or the duration of confinement, his claims for damages and

declaratory relief are similarly not cognizable in a 42 U.S.C.

§ 1983 action until the relevant conviction has been reversed.

See Edwards v. Balisok, 520 U.S. 641, 648 (1997); Heck v.

Humphrey, 512 U.S. 477, 487 (1994).

Although the district court herein did not consider the

above principles in analyzing Thomas’ due process claim, the

district court’s dismissal was nonetheless appropriate and should

be affirmed under Heck. See Johnson v. McCotter, 803 F.2d 830,

834 (5th Cir. 1986). The dismissal of this claim is “with No. 02-20405 -3-

prejudice to [its] being asserted again until the Heck conditions

are met.” Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir.

1996).

Thomas’s retaliation claim fails because he does not

identify the specific constitutional right he invoked for which

he suffered retaliation. See Woods v. Smith, 60 F.3d 1161, 1165-

66 (5th Cir. 1995). He asserts that Major Thomas and other

defendants retaliated against him, in the form of filing false

disciplinary charges, for his refusal to become an informant

against the Muslim community. Unlike the prisoner in Woods,

Thomas does not indicate that he complained about this conduct to

Major Thomas’ supervisors and then suffered retaliation for

exercising his constitutional right of access to the courts. See

60 F.3d at 1162-63. Based on the foregoing, the district court

did not err in dismissing Thomas’ retaliation claim.

The district court’s dismissal of the complaint as frivolous

and for failure to state a claim counts as a “strike” for

purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103

F.3d 383, 385-87 (5th Cir. 1996). Thomas is warned that if he

accumulates three strikes pursuant to 28 U.S.C. § 1915(g), he may

not 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. Id.

AFFIRMED; SANCTION WARNING ISSUED.