The opinion
United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40456
Conference Calendar
MARCOS ORTIZ,
Plaintiff-Appellant,
versus
DONNA BROWN; MARIA L. MERCADO,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:02-CV-361
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Marcos Ortiz (Ortiz), Texas prisoner # 1049113, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous. Ortiz was convicted of aggravated robbery and
aggravated assault. He filed his 42 U.S.C. § 1983 complaint
against his court-appointed attorney and investigator in that
criminal proceeding. Ortiz argues that his attorney and
investigator conspired to deny him due process and deprive him of
equal protection by failing to investigate his case. He contends
*
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this opinion should not be published and is not precedent except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. 04-40456
-2-
that an investigation of the case would have shown that the
charges against him were fabricated.
Ortiz’s allegations are ones alleging “harm caused by
actions whose unlawfulness would render a conviction or sentence
invalid.” See Heck v. Humphrey, 512 U.S. 477, 486 (1994). Under
Heck, Ortiz’s allegations are not actionable because he has not
shown that his conviction has been reversed on direct appeal,
expunged by the executive, invalidated by other state means, or
called into question by the issuance of a federal habeas writ.
Id. at 487.
Accordingly, Ortiz’s appeal is dismissed as frivolous. See
5TH CIR. R. 42.2. The dismissal of his complaint and appeal in
this matter each count as a “strike” under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Ortiz has accumulated at least two other “strikes.” See Ortiz v.
Fernald, No. 04-20186, 2004 WL 1372935 (5th Cir. June 18, 2004)
(unpublished). Thus, Ortiz is BARRED from proceeding 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 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) SANCTIONS
IMPOSED.