Zihlavsky v. Bossier City Police

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 13, 2000
• Docket: 00-30812
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30812 Conference Calendar

MICHAEL PAUL ZIHLAVSKY,

Plaintiff-Appellant,

versus

POLICE DEPARTMENT OF BOSSIER CITY; POLICE DEPARTMENT OF SHREVEPORT; SHERIFF OF BOSSIER CITY PARISH; DANNY DISON; ALAN J. GOLDEN; PAM SMART; TIM DEMENT; JOHN R. JETER; G. SPROLES; B. WOODROW NESBITT, JR.; JAMES W. STEWART; LARRY C. DEEN; CHUCK ANDREWS; TOM MYRICK; S. PRATOR,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 00-CV-519 -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Michael Paul Zihlavsky (“Zihlavsky”), Louisiana prisoner

# 309324, appeals the district court’s dismissal of his 42 U.S.C.

§ 1983 civil rights action as frivolous. His motion to file a

supplemental brief is GRANTED. Zihlavsky argues that: (1) the

district court abused its discretion by dismissing his claims,

stemming from the events in 1998 and 1999, as frivolous under

Heck v. Humphrey, 512 U.S. 477 (1994); (2) the district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-30812 -2-

abused its discretion by dismissing his claims, stemming from the

events in 1996, as frivolous because the claims were prescribed;

and (3) the district court erred by dismissing his claims for

habeas relief without prejudice for failing to exhaust state

court remedies.

The district court properly dismissed Zihlavsky’s claims,

stemming from the events in 1998 and 1999, as frivolous because

the claims necessarily imply the invalidity of his conviction or

sentence. See Heck 512 U.S. at 486-87. The district court also

properly dismissed Zihlavsky’s claims, stemming from the events

in 1996, as frivolous because the claims were prescribed under

Louisiana’s one-year prescriptive period. See Elzy v. Roberson,

868 F.2d 793, 794-95 (5th Cir. 1989); Freeze v. Griffith, 849

F.2d 172, 175 (5th Cir. 1988). Finally, the district court

properly dismissed without prejudice that aspect of Zihlavsky’s

complaint that sounded in habeas corpus because he failed to show

that he exhausted available state court remedies. See Pugh v.

Parish of St. Tammany, 875 F.2d 436, 439 (5th Cir. 1989).

Zihlavsky’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 dismissal of Zihlavsky’s complaint as frivolous and

the dismissal of this appeal as frivolous each count as a strike

for purposes of 28 U.S.C. § 1915(g). See Patton v. Jefferson

Correctional Ctr., 136 F.3d 458, 462-64 (5th Cir. 1998); Adepegba

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

Zihlavsky that once he accumulates three strikes, he may not

proceed in forma pauperis in any civil action or appeal filed No. 00-30812 -3-

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; MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED;

28 U.S.C. § 1915(g) WARNING ISSUED.