United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 04-60302
Conference Calendar
ROBERT SAMUEL SCRUGGS,
Plaintiff-Appellant,
versus
JEFF PALMER, Agent of Mississippi Bureau of Narcotics;
MARK MILLS, Agent and Officer, Alcorn County; RON DICKEY,
Ex-Corinth Police Officer; ALCORN COUNTY MISSISSIPPI;
MISSISSIPPI BUREAU OF NARCOTICS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:04-CV-48
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Robert Samuel Scruggs, Mississippi prisoner #79644, moves
for leave to proceed in forma pauperis (IFP) following the
district court’s certification pursuant to 28 U.S.C. § 1915(a)(3)
that his appeal from the dismissal of his 42 U.S.C. § 1983 action
is taken in bad faith. Scruggs’s IFP motion is DENIED. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
*
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that this opinion should not be published and is not precedent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. 04-60302
-2-
The district court dismissed Scruggs’s action for failure to
exhaust administrative remedies, pursuant to 42 U.S.C.
§ 1997e(a), and for failure to state a claim because Scruggs’s
claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994). We
address only whether Scruggs’s claims were barred by Heck.
Scruggs contends essentially that he was deprived of the
opportunity to have his constitutional claims heard in a federal
forum, something he argues habeas corpus proceedings would not
provide him. He also argues that the state courts should not be
trusted to sit in judgment of the actions of state employees. He
states that his case does not present federal habeas corpus
issues.
Scruggs provides conclusory allegations that he was framed
and that false testimony was presented at his trial. Those
allegations are insufficient to raise a substantive federal
constitutional issue. See Koch v. Puckett, 907 F.2d 524, 530
(5th Cir. 1990). Scruggs does not otherwise provide specific
factual allegations or legal arguments regarding whether the
facts and constitutional violations he alleged in the district
court did not fall under Heck. Scruggs has abandoned those
contentions for appeal. See In re Municipal Bond Reporting
Antitrust Litigation, 672 F.2d 436, 439 n.6 (5th Cir. 1982).
The instant appeal is frivolous and is dismissed as such.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2.
No. 04-60302
-3-
The dismissal of this appeal and the district court’s
dismissal of Scruggs’s complaint for failure to state a claim
count as strikes under the Prison Litigation Reform Act. See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Scruggs
previously obtained a strike when his appeal was dismissed in
Scruggs v. Howie, No. 01-60898 (5th Cir. Apr. 9, 2002)
(unpublished), and he was cautioned in that opinion that the
accumulation of three strikes would result in the imposition of a
bar under 28 U.S.C. § 1915(g). Because Scruggs has now
accumulated three strikes under 28 U.S.C. § 1915(g), he is BARRED
from proceeding 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. 28 U.S.C. § 1915(g).
IFP DENIED. APPEAL DISMISSED. 5TH CIR. R. 42.2. 28 U.S.C.
§ 1915(g) SANCTION IMPOSED.