Alvarez vs. Ortega, (5th Cir. 2006)
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United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS
February 23, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-10405
Conference Calendar
ALFREDO ALVAREZ,
Plaintiff-Appellant,
versus
NFN ORTEGA, Detective, Forth Worth Police Department;
ROBERT RANGEL, Drug Enforcement Administration Agent;
TERRI MOORE, Assistant United States Attorney; NEIL
DURRANCE, Public Defender; KEVIN FITCHETT, Detective,
Fort Worth Police Department; PAUL GARTNER, C.D. Deputy
Chief; LIEUTENANT UNKNOWN,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CV-403-Y
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:* Alfredo Alvarez, federal prisoner # 30170-077, appeals the dismissal of his Bivens** complaint and moves for appointment of counsel. The district court held in pertinent part that Alvarez's claims were barred by Heck v. Humphrey, 512 U.S. 477, * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ** Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,403 U.S. 388 (1971). 486 (1994). Alvarez has failed to brief this issue and therefore has waived its review. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Alvarez's appeal is without arguable merit and is therefore dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. His motion for appointment of counsel is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). The dismissal of his appeal as frivolous and the district court's dismissal of his complaint as frivolous and for failure to state a claim constitute two strikes for the purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Alvarez is cautioned that if he obtains three strikes, he will not be able to 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. See § 1915(g).
APPEAL DISMISSED; APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING ISSUED.
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This document cites
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1915 - Sec. 1915. Proceedings in forma pauperis
- U.S. Supreme Court - Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)
- U.S. Court of Appeals for the Fifth Circuit - Valentino B. Adepegba, Plaintiff-Appellant, v. Billy G. Hammons, Individually and in His Official Capacity as Special Agent Assigned To F C I Oakdale; John L. Nixon, Individually and in His Official Capacity as Acting Supervisory Special Agent At F C I Oakdale, Defendants-Appellees., 103 F.3d 383 (5th Cir. 1996)
- U.S. Court of Appeals for the Fifth Circuit - Clinton C. Howard, Jr., and Michael Chapman and Kenneth Robinson, Plaintiffs-Appellants, v. John T. King, Secretary, Department of Corrections, and Ross Maggio, Jr., Warden, Louisiana State Penitentiary, Defendants-Appellees., 707 F.2d 215 (5th Cir. 1983)
- U.S. Court of Appeals for the Fifth Circuit - Genus D. Ulmer, Plaintiff-Appellant, v. George Chancellor, Sheriff, and Jones County Board of Supervisors, Defendants-Appellees. No. 82-4007. Summary Calendar., 691 F.2d 209 (5th Cir. 1982)
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