IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40852 Conference Calendar

DANIEL WALKER,

Plaintiff-Appellant,

versus

JACK SKEEN, JR., District Attorney, Smith County; ANDY NAVARRO, Grand Jury Foreman, Smith County,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CV-217 -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Daniel Walker, Texas state prisoner # 1031016, is appealing

the district court’s dismissal of his

complaint

based on the absolute immunity of the district attorney who

prosecuted him and the grand jury foreman who signed the

indictment against him. A prisoner’s in forma pauperis (IFP)

civil rights complaint is subject to dismissal if the action is

frivolous or fails to state a claim upon which relief may be

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40852 -2-

granted. Black v. Warren,

(5th Cir. 1998); see

(e)(2)(B)(i) & (ii).

It appears that Walker’s claim is barred by Heck v.

Humphrey,

(1994) because he has not alleged

that his sentence has been reduced based on a court’s recognition

that it was illegally enhanced by a reversed prior conviction.

However, a district court may address absolute immunity before

making a Heck analysis. Boyd v. Biggers,

(5th

Cir. 1994).

Walker’s claims against the prosecutor and the grand jury

foreman were properly dismissed based on absolute immunity

because he is challenging acts performed in connection with his

indictment and prosecution. Imbler v. Pachtman,

(1976).

This appeal is without arguable merit and thus frivolous.

See Howard v. King,

(5th Cir. 1983). Because

the appeal is frivolous, it is DISMISSED. 5th Cir. R. 42.2. The

district court's dismissal of Walker's complaint and this court's

dismissal of the appeal as frivolous count as two strikes for

purposes of

(g). See Adepegba v. Hammons,

(5th Cir. 1996). Walker is CAUTIONED that if he

accumulates three strikes under

(g), he will not

be able to proceed 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

(g).

APPEAL DISMISSED; SANCTIONS WARNING ISSUED.