Redd v. LeBlanc

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 1, 2009
No. 08-31061
Summary Calendar Charles R. Fulbruge III
Clerk
REDELL REDD
Plaintiff-Appellant
v.
JAMES M LEBLANC, Secretary of Public Safety and Correction; CONNIE
KENNEDY, Records Custodian; DEPUTY WARDEN STEVE RADER
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:08-CV-465
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Redell Redd, Louisiana prisoner # 125980, seeks leave to proceed in forma
pauperis (IFP) in his appeal of the dismissal of his civil rights complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous. In dismissing Redd’s
complaint, the district court adopted the magistrate judge’s recommendation
that the complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as
barred under Heck v. Humphrey, 512 U.S. 477 (1994).
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-31061
The district court denied Redd leave to proceed IFP on appeal, certifying
that the appeal was not taken in good faith. By moving for leave to proceed IFP,
Redd is challenging the district court’s certification. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997); F ED. R. A PP. P. 24(a).
Redd asserts that the district court failed to give reasons as required by
Baugh for certifying that his appeal was not taken in good faith. However, the
district court stated specifically that it was certifying that Redd’s appeal was not
taken in good faith “for the reasons set forth in the magistrate judge’s report,”
and such an incorporation by reference satisfies Baugh’s requirements. See
Baugh, 117 F.3d at 202 n.21.
Redd also asserts that he never received notice of the magistrate judge’s
report and recommendation and that he was not given the opportunity to
respond before the district court rendered its decision. However, because the
magistrate judge did not consider any factual disputes in recommending that
Redd’s complaint be dismissed as Heck-barred and because the district court
could assess the merits of Redd’s complaint on its face, any error by the district
court was harmless. See Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981).
Redd does not challenge the district court’s determination that his claim
was barred by Heck. Accordingly, he has abandoned the only issue before this
court. See Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999).
In light of the foregoing, Redd’s motion fails to show error in the district
court’s certification decision and fails to show that Redd will raise a nonfrivolous
issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, Redd’s motion to proceed IFP on appeal is denied, and his appeal
is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5 TH C IR. R. 42.2.
This court’s dismissal and the district court’s dismissal of Redd’s complaint
each count as strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Redd is warned that if he accumulates three
strikes under § 1915(g), he will not be able to proceed IFP in any civil action or
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No. 08-31061
appeal filed while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See § 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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