Somerville v. Bomer, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10018
Conference Calendar
KEITH L. SOMERVILLE,
Plaintiff-Appellant,
versus
ELTON BOMER, Secretary of State;
EARL BULLOCK, County Clerk; JIM HAMLIN,
District Clerk; DAVID CHILDS, Assessor/collector;
JIM BOWLES, Sheriff; DIRECTOR OF PUBLIC SAFETY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-1455-X
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August 21, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Keith L. Somerville (Texas prisoner #529020) appeals the
district court’s dismissal of his civil rights complaint as
frivolous under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i).
His complaint alleged that the jury-panel-selection process in
Dallas County, Texas, systematically excluded African Americans
and Hispanics from participation and sought the following relief:

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(1) damages in the amount of $18,000,000, (2) a declaration that
the jury-panel-selection process in Dallas County is
unconstitutional, (3) new trials for all litigants who have lost
civil damages cases in Dallas County, (4) an overhaul of the
present jury-panel-selection process by allowing more African
Americans and Hispanics to participate, (5) the invalidation of
his Texas conviction for burglary of a habitation, and (6) new
trials for others who have been convicted in Dallas County.
Somerville argues that the district court abused its discretion
in dismissing his complaint as frivolous. See Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999).
Somerville does not challenge the district court’s
conclusion that he lacked standing to seek monetary and
declaratory relief for claims unrelated to his current Texas
burglary conviction. He has waived any challenge to that
conclusion by failing to brief it. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993). With regard to his claims and
requested relief stemming from his current burglary conviction,
which his complaint sought to have “thrown out,” Somerville has
not shown that the conviction has been overturned or invalidated
or that his requests for relief are not so intertwined that a
favorable ruling on one of them would necessarily imply the
invalidity of his conviction. See Clarke v. Stalder, 154 F.3d
186, 189-90 (5th Cir. 1998)(en banc). Accordingly, he has not
shown that the district court erred in determining that the

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claims were premature under Heck v. Humphrey, 512 U.S. 477
(1994), or that the court abused its discretion in dismissing his
complaint as frivolous. See Berry, 192 F.3d at 507; Clarke, 154
F.3d at 189-91.
Somerville’s appeal is frivolous and is therefore DISMISSED.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR.
R. 42.2. The district court’s dismissal of his complaint as
frivolous and the dismissal of this appeal as frivolous each
count as a strike for the purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). We
caution Somerville that, by accumulating three strikes under 28
U.S.C. § 1915(g), he will not be able to 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) WARNING ISSUED.

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