     Case: 17-60715      Document: 00514634982         Page: 1    Date Filed: 09/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                      No. 17-60715                         FILED
                                                                   September 10, 2018
                                                                      Lyle W. Cayce
MELVIN GRAYER,                                                             Clerk

                                                 Plaintiff-Appellant

v.

JAMES FILLIYAW, Warden, Pearl River Central Mississippi Correctional
Facility; RONALD KING; JEWARSAI MALLET; JERRY WILLIAMS; JANE
AND JOHN DOES,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:16-CV-709


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Melvin Grayer, Texas prisoner # 08710, moves for leave to proceed in
forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C. § 1983
complaint. The district court dismissed Grayer’s § 1983 claim with prejudice
as frivolous and for failure to state a claim after determining that the claim




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-60715    Document: 00514634982      Page: 2   Date Filed: 09/10/2018


                                 No. 17-60715

was barred by Heck v. Humphrey, 512 U.S. 477 (1994), and the district court
certified that an appeal is not taken in good faith on that basis.
      By moving to proceed IFP, Grayer is challenging the district court’s
certification that his appeal is frivolous and not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). However, Grayer does not dispute
that he sought monetary damages from the defendants, nor does he address
the district court’s determination that his § 1983 claim was barred by Heck,
which was the basis for the district court’s certification decision. Thus, he has
not shown that “the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted).
      Accordingly, his motion to proceed IFP on appeal is denied, and the
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR.
R. 42.2. The dismissal of the complaint by the district court and the dismissal
of this appeal as frivolous constitute two strikes under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Grayer is
WARNED that accumulating a third strike will preclude him from proceeding
IFP in any civil action or appeal while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury.
See § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS;
SANCTION WARNING ISSUED.




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