     Case: 08-10919     Document: 00511013291          Page: 1    Date Filed: 01/27/2010




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

                                                  FILED
                                                                          January 27, 2010
                                     No. 08-10919
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

REZA VAFAIYAN,

                                                   Plaintiff-Appellant

v.

TARGET INC; MIKE ELLSWORTH, Target Employee; OFFICER WILLIAMS,
Dallas Police Department; DALE NEWKIRK, Officer of the Drug Enforcement
Administration,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CV-1619


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Reza Vafaiyan, Texas prisoner # 1361129, has filed a motion for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of
his 42 U.S.C. § 1983 complaint. The district court dismissed Vafiayan’s claims
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), reasoning that his claims were barred
by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). For the same reasons, the



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10919    Document: 00511013291 Page: 2        Date Filed: 01/27/2010
                                 No. 08-10919

district court denied Vafaiyan’s motion to appeal IFP and certified that
Vafaiyan’s appeal was not taken in good faith. By moving for leave to proceed
IFP, Vafaiyan is challenging the district court’s certification decision. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Vafaiyan argues that the defendants unconstitutionally detained him for
purchasing a small quantity of methamphetamine from a Target store and
singled him out based on his race. He contends that the district court erred in
concluding that these claims were Heck-barred, as his allegations are unrelated
to his money laundering conviction.
      Vafaiyan is currently serving a life sentence for his money laundering
conviction. See Vafaiyan v. State, 279 S.W.3d 374, 378 (Tex. Ct. App. 2008).
Vafaiyan’s allegations in the instant proceeding would imply the invalidity of his
money laundering conviction because the drug charges were incorporated in the
money laundering charge. As Vafaiyan has not demonstrated that a proper
tribunal has held his conviction invalid, his claims are Heck-barred. See Heck,
512 U.S. at 486-87; Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995). Vafaiyan has
not shown that he will present a nonfrivolous issue on appeal. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion for leave to
proceed IFP 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 dismissal of this appeal and the district court’s dismissal as frivolous
count as two strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996).       Vafaiyan has one previous strike.      See
Vafaiyan v. City of Wichita Falls, Texas, 317 F. App’x 406, 408-09 (5th Cir. 2009).
Because Vafaiyan has now accumulated three strikes, he is barred from
proceeding in forma pauperis 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).



                                          2
  Case: 08-10919   Document: 00511013291 Page: 3   Date Filed: 01/27/2010
                               No. 08-10919

     IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.




                                   3
