United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-51262
Conference Calendar
BILL RUTHERFORD,
Plaintiff-Appellant,
versus
BOARD OF PARDONS AND PAROLES,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CV-313
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Bill Rutherford, Texas prisoner # 275320, seeks permission
to proceed in forma pauperis (“IFP”) to appeal the dismissal of
his 42 U.S.C. § 1983 complaint, in which he alleged that his
constitutional rights were violated during and after his 1999
parole-revocation proceedings. By filing the IFP motion,
Rutherford is challenging the district court’s certification
decision that his appeal was not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
*
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that this opinion should not be published and is not precedent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. 02-51262
-2-
§ 1915(a)(3); FED. R. APP. P. 24(a)(5).
Rutherford has not addressed the district court’s
determination that his claims are barred by Heck v. Humphrey, 512
U.S. 477 (1994). Thus, any challenge to the dismissal of the
complaint on that basis is abandoned. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993). Even if the argument were
preserved, it is without merit. Rutherford’s complaint attacks
the validity of his parole revocation, and he has not shown that
the revocation of his parole has been set aside or otherwise
called into question. As the district court determined, his
claims are barred by Heck and have no arguable legal merit. See
Heck, 512 U.S. at 486-87; Jackson v. Vannoy, 49 F.3d 175, 177
(5th Cir. 1995).
Rutherford has failed to identify a nonfrivolous issue for
appeal, and he has not shown that the district court erred in
certifying that an appeal would not be taken in good faith. His
motion to proceed IFP is DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
The district court’s dismissal of his 42 U.S.C. § 1983
action for failure to state a claim and this court’s dismissal of
his appeal as frivolous each count as a “strike” under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996). Rutherford has received strikes in the following cases:
Rutherford v. Disciplinary Case, # 2001, 0264394, No. 02-11050,
Rutherford v. Board of Pardons and Paroles, No. 02-51259,
No. 02-51262
-3-
Rutherford v. Board of Pardons and Paroles, No. 02-51260,
Rutherford v. Board of Pardons and Paroles, No. 02-51268,
Rutherford v. Board of Pardons and Paroles, No. 02-51266, and
Rutherford v. Bell County Jail Administrator, No. 02-51261.
Rutherford has now accumulated over three strikes under 28 U.S.C.
§ 1915(g), and he may not 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 28 U.S.C. § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; THREE-STRIKES BAR
IMPOSED.