United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-51266
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-309
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Bill Rutherford, Texas prisoner # 275320, has filed a motion
for leave to proceed in forma pauperis (IFP) in his appeal of the
district court’s dismissal of his 42 U.S.C. § 1983 action as
frivolous under Heck v. Humphrey, 512 U.S. 477, 487 (1994). He
argues that: (1) the laws in effect at the time of the commission
of his offense on July 30, 1977, govern the revocation of his
parole for that offense; (2) his 42 U.S.C. § 1983 action is based
*
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that this opinion should not be published and is not precedent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. 02-51266
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on Morrissey v. Brewer, 408 U.S. 471, 488 (1972) and is not
frivolous; and (3) the retroactive application of laws enacted
after the commission of his offense violated his constitutional
rights. Rutherford does not argue that Heck is inapplicable or
that the parole revocation proceeding that he is challenging has
been reversed or invalidated. Because Rutherford does not
provide any analysis of this issue, he therefore waives any
appeal of it. See United States v. Reyes, 300 F.3d 555, 558 n.2
(5th Cir. 2002); American States Ins. Co. v. Bailey, 133 F.3d
363, 372 (5th Cir. 1998). Because Rutherford 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 v. Taylor,
117 F.3d 197, 202 n.24 (5th Cir. 1997); 5TH CIR. R. 42.2.
The district court’s dismissal of his complaint and this
court’s dismissal of this appeal as frivolous each count as a
strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996). Rutherford has received
strikes in the following cases: Rutherford v. Board of Pardons
and Paroles, No. 02-51262, Rutherford v. Disciplinary Case,
No. 02-11050, Rutherford v. Board of Pardons and Paroles,
No. 02-51259, Rutherford v. Board of Pardons and Paroles,
No. 02-51260, Rutherford v. Board of Pardons and Paroles,
No. 02-51268, and Rutherford v. Bell County Jail Administrator,
No. 02-51261. Rutherford has now accumulated over three strikes
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under 28 U.S.C. § 1915(g), and 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 28 U.S.C. § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g)
BAR IMPOSED.