IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50496 Conference Calendar

SOLOMON G. WATT,

Plaintiff-Appellant,

versus

VICTOR RODRIGUEZ, Chairman of Texas Board of Pardons and Parole; GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CV-42-F - - - - - - - - - -

October 20, 1999

Before JONES, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

Solomon G. Watt, Texas prisoner # 460844, appeals the

district court’s dismissal as frivolous of his

suit. On appeal, Watt contends that he is unconstitutionally

imprisoned beyond the maximum sentence imposed by the trial

court. He seeks monetary damages and attorney’s fees.

Watt’s suit is not cognizable under § 1983. See Heck v.

Humphrey,

(1994). To recover damages for an

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-50496 -2-

allegedly unconstitutional conviction or imprisonment, or for

harms caused by actions whose unlawfulness would render a

conviction or sentence invalid, a § 1983 plaintiff must first

prove that the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas

corpus. Id. Watt has neither alleged nor proven that his

imprisonment has been invalidated. Accordingly, the district

court’s order dismissing Watt’s suit as frivolous pursuant to

(e) is AFFIRMED.

The district court’s dismissal counts as a strike against

Watt. See Adepegba v. Hammons,

(5th Cir. 1996)

(affirmance of district court’s dismissal as frivolous counts as

a single strike). Watt is cautioned that if he accumulates three

strikes, 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 in imminent danger of serious physical

injury. See

(g).

AFFIRMED; SANCTION WARNING ISSUED