Case: 17-20402      Document: 00514525286         Page: 1    Date Filed: 06/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 17-20402                            June 22, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
ADRIAN GASTON,

                                                 Plaintiff-Appellant

v.

KIM OGG; ART ACEVEDO; KATHERINE CABANISS,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:17-CV-1383


Before DAVIS, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Adrian Gaston, Texas inmate # 02167020, is currently serving a life
sentence without parole after his conviction for capital murder. In May 2017,
while still in pretrial custody, he filed a 42 U.S.C. § 1983 complaint against the
defendants challenging their actions in the course of the murder investigation
and pretrial proceedings. Gaston now appeals the district court’s dismissal of




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-20402    Document: 00514525286     Page: 2   Date Filed: 06/22/2018


                                 No. 17-20402

his complaint as frivolous and for failure to state a claim. See 28 U.S.C.
§ 1915(e)(2)(B).
      The successful prosecution of Gaston’s claims against the defendants
“would necessarily imply that [his] criminal conviction [and related pretrial
detention] was wrongful.” Heck v. Humphrey, 412 U.S. 477, 486 n.6 (1994).
Because Gaston does not allege, much less show, that his detention and murder
conviction have been reversed, expunged, invalidated, or called into question
by a federal court’s issuance of a writ of habeas corpus, Heck bars his claims.
Id. at 486-87.
      Gaston’s appeal is without arguable merit and is dismissed as frivolous.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2. The
dismissal of this appeal as frivolous and the district court’s dismissal of
Gaston’s complaint as frivolous and for failure to state a claim each count as a
strike for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). Gaston is hereby warned 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 § 1915(g).
      APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.




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