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Zihlavsky v. Bossier City Police ( 2000 )


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  •                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that this opinion should not be published and is not precedent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.