Eaton v. McGee

United States Court of Appeals
Fifth Circuit

FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-60207
Conference Calendar

RANDY EATON,

Plaintiff-Appellant,

versus

JIMMY MCGEE, Alcorn County Justice Court Judge, in his
individual and official capacity; JIMMY TAYLOR, Sheriff of
Alcorn County, Mississippi, in his individual and official
capacity; JEFF Individually and in His Official Capacity,
Mississippi Bureau of Narcotics, in his individual and
official capacity; HOUSTON BROWN, Investigator for the
Alcorn County Sheriff’s Department, in his Official and
Individual Capacity; THOMAS HOPKINS, Alcorn County Sheriff’s
Department, in His Individual and Official Capacity; GERALD
HALL, Mrs., in Her Individual Capacity,

Defendants-Appellees.

--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:04-CV-20-P-D
--------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

Randy Eaton, Mississippi prisoner # 76147, 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 he is

entitled to damages stemming from searches of his residence. In

*
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this opinion should not be published and is not precedent except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. 04-60207
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filing the IFP motion, Eaton 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. § 1915(a)(3); FED. R. APP. P. 24(a)(5).

The district court failed to comply with Baugh since it

provided neither reasons for certifying that Eaton’s appeal was

not taken in good faith, nor incorporated its decision on the

merits of Eaton’s complaint. Baugh, 117 F.3d at 202; FED. R. APP.

P. 24(a)(3). Nevertheless, this court may dismiss the case sua

sponte pursuant to 5TH CIR. R. 42.2 if it is apparent that the

appeal lacks merit. Baugh, 117 F.3d at 202 & n.24.

Eaton 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). However, because the district court

failed to provide reasons for its bad faith certification, the

court will address the merits of the appeal. This court’s

inquiry into an appellant’s good faith “is limited to whether the

appeal involves ‘legal points arguable on their merits (and

therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983) (citation omitted).

Eaton’s complaint challenges the validity of his probation

revocation and two additional convictions, but he has not shown

that the revocation or convictions have been set aside or
 No. 04-60207
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otherwise called into question. His claims are barred by Heck

and, thus, have no arguable merit. See Heck, 512 U.S. 486-87;

Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995).

Likewise, Eaton’s complaint against the county court judge

has no arguable merit because it is barred by judicial immunity.

See Mireles v. Waco, 502 U.S. 9, 11 (1991); Malina v. Gonzales,

994 F.2d 1121, 1124 (5th Cir. 1993). Eaton 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. Eaton’s 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 dismissal of this appeal as frivolous and the dismissal

of the complaint as frivolous by the district court both count as

strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Eaton is cautioned

that once he accumulates three strikes, he will not be permitted

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).

IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C.

§ 1915(g) SANCTION WARNING ISSUED.