IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10554 Conference Calendar

RICHARD BURNS,

Plaintiff-Appellant,

versus

STATE OF TEXAS; BUDDY GRIMES; WARDEN MCLEOD; NFN MUNSELL, Warden; JAMIE BAKER; DEBBIE MOORE; ROSA L. AGUIRRE; DENNIS SPAN; SHERRI CAGLE,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:99-CV-397 -------------------- February 13, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Richard Burns (#637122), a state prisoner, has appealed the

district court's judgment dismissing his civil rights complaint

as frivolous under 42 U.S.C. § 1997e(c)(1). Burns contends that

the district court erred in dismissing his claims related to

disciplinary case number 980126293 under the rule in Heck v.

Humphrey,

(1994). The district court did not apply

Heck in dismissing these claims, relying instead upon the rule in

Sandin v. Conner,

(1995). Burns does not contend

that the district court erred in applying Sandin. Because

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10554 -2-

Burns's remaining claims, involving disciplinary case numbers

990206487, 990080635, 20000111138, and 20000219322, implicate the

validity of the punishment imposed for the disciplinary

violations, they are not cognizable under

.

Heck,

; see Edwards v. Balisok,

(1997).

Burns contends that the district court erred in dismissing

his complaint "without first determining whether the clerk abused

his authority in making a judicial determination on appellant's

motion to consolidate cases . . . for lack of conformity with

form requirements" and in delaying the filing of Burns's motion

to consolidate. The error, if any, was harmless.

Because the appeal is frivolous,

IT IS ORDERED that the appeal is DISMISSED. See Howard v.

King,

(5th Cir. 1983); 5th Cir. R. 42.2. The

dismissal of the instant appeal and the dismissal of the

complaint as frivolous under 42 U.S.C § 1997e(c)(1) by the

district court each count as a strike for purposes of

(g). See Adepegba v. Hammons,

(5th

Cir. 1996). We CAUTION Burns that once he accumulates three

strikes, he may not proceed IFP 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

(g).

IT IS FURTHER ORDERED that all outstanding motions are

DENIED.

APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTIONS DENIED.