     Case: 14-31375      Document: 00513187598         Page: 1    Date Filed: 09/10/2015




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


                                      No. 14-31375                                FILED
                                                                          September 10, 2015
                                                                             Lyle W. Cayce
RONALD MARSHALL,                                                                  Clerk

                                                 Plaintiff-Appellant

v.

BOBBY JINDAL, Governor of State; JAMES LEBLANC, Secretary of
Corrections; ROBERT TANNER, Warden,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-540


Before GRAVES, HIGGINSON and COSTA, Circuit Judges.
PER CURIAM: *
       Ronald Marshall, Louisiana prisoner # 336016, moves to proceed in
forma pauperis (IFP) to appeal the dismissal as frivolous of his 42 U.S.C. § 1983
complaint. By moving to proceed IFP in this court, Marshall is challenging the
district court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). This court’s inquiry into a litigant’s good faith “is limited to whether
the appeal involves legal points arguable on their merits (and therefore not


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 14-31375

frivolous).”   Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted). In addition, when the trial court’s
certification decision is inextricably intertwined with the merits of the case,
this court may dispose of the appeal on its merits. Baugh, 117 F.3d at 202
n.24; 5th Cir. R. 42.2.
      In his § 1983 complaint, Marshall claimed that Louisiana’s habitual
offender statute, La. Rev. Stat. 15:529.1, under which he was sentenced, did
not provide for imprisonment at hard labor at the time he was sentenced, and
that, therefore, requiring him to serve his enhanced sentence in the custody of
the Louisiana Department of Public Safety and Corrections violated his rights
under the Due Process and Ex Post Facto Clauses of the United States
Constitution. He also claimed that his sentence subjected him to “involuntary
servitude” in violation of the Thirteenth Amendment.
      Marshall’s claims under the Due Process and Ex Post Facto Clauses
challenge the validity of his sentence and confinement. The issue is thus
whether he may use 42 U.S.C. § 1983 to challenge his sentence and
confinement. Before a § 1983 plaintiff can recover damages for an “allegedly
unconstitutional . . . imprisonment,” he must prove that the challenged
sentence has been “reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ of habeas corpus.”
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see McGrew v. Tex. Bd. of
Pardons & Paroles, 47 F.3d 158, 160-61 (5th Cir. 1995). Until Marshall can
make such a showing, his claims seeking damages via § 1983 are not cognizable
and must be dismissed. See Heck, 512 U.S. at 487; McGrew, 47 F.3d at 160-61.
Marshall has abandoned his Thirteenth Amendment claim by failing to raise
it in his brief. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).



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                                  No. 14-31375

      Marshall has not shown that his appeal involves a nonfrivolous issue.
See Howard, 707 F.2d at 220. Because the appeal is frivolous, it is dismissed.
See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 n.24. Marshall is informed that
the district court’s dismissal of his complaint and this court’s dismissal of this
appeal count as two strikes for purposes of 28 U.S.C. § 1915(g). See Coleman
v. Tollefson, 135 S. Ct. 1759, 1763 (2015); Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996). He is cautioned that if he accumulates three strikes, he
will no longer be allowed to proceed IFP in any civil action or appeal filed while
he is detained in any facility unless he is in imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).


      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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