Martinez v. Ross-Taylor, 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 23, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-11083
Conference Calendar
ADRIAN GUTIERREZ MARTINEZ,
Plaintiff-Appellant,
versus
EULON ROSS-TAYLOR, Doctor, Medical Director; SCHOCK,
Behavioral Assessment Psychologist,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CV-189-BG
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Adrian Gutierrez-Martinez, Texas prisoner # 562996, appeals
the dismissal of his Americans With Disabilities Act (ADA) claim
for failure to state a claim. He argues that his pre-
disciplinary mental status exams violated psychiatric policy and
therefore caused him to be disciplined for conduct that was a
manifestation of his mental illness and for which he should not
have been held accountable.

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No. 02-11083
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Gutierrez’s self-styled ADA claim is in fact a thinly veiled
challenge to the validity of his disciplinary convictions.
Absent proof that his disciplinary convictions have been
overturned or otherwise declared invalid, Gutierrez cannot bring
a civil action seeking damages based on a finding of guilt on his
disciplinary charges, because success on his civil claim would
necessarily imply the invalidity of his disciplinary convictions.
Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc).
He has therefore failed to state a claim upon which relief could
be granted.
Gutierrez’s appeal is without arguable merit and is
dismissed. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The dismissal of this appeal as
frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g),
in addition to the strike for the district court’s dismissal.
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Gutierrez has also had a second civil rights suit dismissed as
frivolous. See Gutierrez Martinez v. Leher, No. 02-10491 (5th
Cir. Sept. 17, 2002) (unpublished). He is BARRED from bringing
any civil action or appeal in forma pauperis while he is
incarcerated or detained in any facility unless he shows that he
is under imminent danger of serious physical injury.
APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.

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