     Case: 09-51051     Document: 00511128896          Page: 1    Date Filed: 06/02/2010




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

                                                  FILED
                                                                            June 2, 2010
                                     No. 09-51051
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

HERBEY GARCIA ARMENDARIZ,

                                                   Petitioner-Appellant

v.

CHIEF OF POLICE, Odessa Police Department; Officer JONES; Officer
FREDDIE NAYOLA, Narcotics Investigator; Officer MAUEY; Mayor LARRY
MELTON, City of Odessa,

                                                   Respondents-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:09-CV-96


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Herbey Garcia Armendariz, federal prisoner # 79366-180, moves this court
to proceed in forma pauperis (IFP) in this appeal from the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous for being time barred
and/or as failing to state a claim upon which relief could be granted under Heck
v. Humphrey, 512 U.S. 477 (1994). The district court denied his request to



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51051    Document: 00511128896 Page: 2         Date Filed: 06/02/2010
                                 No. 09-51051

proceed IFP on appeal certifying that the appeal was not taken in good faith.
Armendariz’s IFP motion in this court is a challenge to the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1992).
      In his IFP motion, Armendariz argues that the district court’s denial of
IFP status violated his right to due process. By failing to address the bases for
the district court’s certification decision, he has abandoned those issues in the
context of this IFP motion. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
      The district court sua sponte determined that Armendariz’s complaint was
frivolous because it was filed after the applicable two-year limitations period had
elapsed. The district court also concluded that Armendariz’s complaint was
subject to dismissal for failure to state a claim upon which relief may be granted
because it was barred under Heck.
      We need not decide whether the two bases for the district court’s dismissal
of Armendariz’s complaint were proper because Armendariz’s claims were
otherwise subject to dismissal for failure to state a claim upon which relief may
be granted.   See Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992)
(holding that this court can typically affirm a district court’s judgment in a civil
suit on any ground that is apparent from the record). In the instant complaint,
Armendariz is seeking damages for the wrongful seizure and loss of his property.
The random and unauthorized intentional deprivation of property by a state
actor does not constitute a civil-rights violation if the state provides a
meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533
(1984).   In Texas, the tort of conversion fulfills that remedy requirement.
Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). Armendariz’s claim based
upon the seizure and conversion of his property is therefore not actionable under
§ 1983. See id. at 543-44.

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                                 No. 09-51051

      Armendariz’s motion for leave for IFP on appeal is denied, and the appeal
is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5 TH C IR. R. 42.2. The
district court’s dismissal of Armendariz’s § 1983 complaint for failure to state a
claim and our dismissal of this appeal as frivolous both count as strikes for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). Armendariz has at least two other strikes under § 1915(g).
See Armendariz v. Bureau of Prisons, 355 F. App’x 859, at *1 (5th Cir. 2009).
Because Armendariz has accumulated at least three strikes under § 1915(g), he
may no longer 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 § 1915(g). Also, in light of Armendariz’s history of
filing frivolous pleadings, lawsuits, and habeas corpus petitions, we warn
Armendariz that frivolous, repetitive, or otherwise abusive filings will invite the
imposition of sanctions, including dismissal, monetary sanctions, and/or
restrictions on his ability to file pleadings in this court and any court subject to
this court’s jurisdiction.
      IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED; SANCTION WARNING ISSUED.




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