IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10688 Conference Calendar

TONY RAY MITCHELL,

Plaintiff-Appellant,

versus

GERALD GARRETT, Chairman TBPP; CRAIG HINES, Hearing Officer - TBPP; NICKI WEAVER, Parole Officer - TBPP,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CV-40-Y -------------------- April 10, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Tony Ray Mitchell, a Texas prisoner (# 488816), appeals the

district court’s dismissal of his

civil rights

action as frivolous pursuant to

(e)(2). For at

least the third time, Mitchell has filed a

suit

against the captioned defendants, arguing that, during parole-

revocation proceedings, the defendants violated his

constitutional right to the enforcement of a state-court order

dismissing criminal charges against him.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10688 -2-

Although res judicata is normally an affirmative defense

that must be raised by a defendant, see In re Southmark Corp.,

, 934 n.12 (5th Cir.), cert. denied,

(1999), we may raise the res judicata issue sua sponte, in order

to the affirm the district court, when the record provides an

adequate basis for such result. See Russell v. SunAmerica Sec.,

Inc.,

(5th Cir. 1992). Because Mitchell in

prior complaints has raised the instant claims against the

captioned defendants and has had final judgments entered against

him, his claims are barred as res judicata. See Travelers Ins.

Co. v. St. Jude Hosp. Of Kenner, La., Inc.,

(5th

Cir. 1994).

His claims are in any event meritless. Mitchell is

effectively challenging the revocation of his parole. Because he

has not shown that the parole revocation decision itself has been

reversed, expunged, declared invalid, or called into question by

a federal court’s issuance of a writ of habeas corpus, Mitchell’s

claim is not cognizable under

and must be

dismissed. See Heck v. Humphrey,

(1994).

Mitchell’s appeal is without arguable merit and is thus

frivolous. See Howard v. King,

(5th Cir.

1983). Accordingly, Mitchell’s appeal is DISMISSED. See 5TH CIR.

R. 42.2. Mitchell is advised that the district court’s dismissal

of this action and this court’s dismissal of this appeal both

count as “strikes” pursuant to

(g). See Adepegba

v. Hammons,

(5th Cir. 1996). Recently, in

Mitchell v. Bowman, No. 00-10687 (5th Cir. Feb. 14, 2001) No. 00-10688 -3-

(unpublished), Mitchell was advised that he had already

accumulated three strikes and that he was barred from proceeding

in forma pauperis in any civil action or appeal while he is

incarcerated or detained in any facility unless he is under

imminent danger of serious physical injury. See

(g). The current appeal was filed before the three-strikes

bar was imposed against Mitchell, but he is hereby again warned

of the consequences of filing another in forma pauperis action

while he is incarcerated.

Mitchell’s “Emergency Motion Requesting . . . the Court to

Take: Judicial Notice” is DENIED.

APPEAL DISMISSED;

(g) BAR IMPOSED.