     Case: 12-41094       Document: 00512346515           Page: 1    Date Filed: 08/19/2013




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

                                                                              FILED
                                                                           August 19, 2013
                                     No. 12-41094
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

TROY LEE PERKINS,

                                                   Plaintiff-Appellant

v.

BRAD LIVINGSTON; TIMOTHY C. SIMMONS; V. MILLER; KARLA
BURLESON; BRANDI MOSELEY,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:12-CV-121


Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Troy Lee Perkins, Texas prisoner # 1480826, has filed a motion for leave
to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal
without prejudice of his 42 U.S.C. § 1983 complaint in which he sought to
challenge a prison disciplinary case for threatening an officer. The district




       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 12-41094

court denied Perkins’s motion for leave to proceed IFP on appeal and certified
that the appeal was not taken in good faith.
      Perkins merely states that he contests the district court’s certification
decision. He does not set forth the nature of the issues he intends to raise on
appeal, and he particularly fails to address the grounds upon which the district
court dismissed his § 1983 complaint and denied his IFP motion.
Consequently, Perkins has abandoned his district court claims, as well as any
challenge to the district court’s certification. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). As Perkins has not
demonstrated that he will raise a nonfrivolous issue on appeal, see Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983), his motion to proceed IFP is
DENIED. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997). Because
his appeal is frivolous, see Howard, 707 F.2d at 219-20, it is DISMISSED. See
5TH CIR. R. 42.2.
      The district court dismissed Perkins’s complaint without prejudice;
however, because the complaint, as found by the district court, is premature
under Heck v. Humphrey, 512 U.S. 477 (1994), and Perkins has abandoned any
challenge to the district court’s decision, the dismissal should have been with
prejudice. See Boyd v. Biggers, 31 F.3d 279, 283-84 (5th Cir. 1994). Although
there is no cross-appeal, the dismissal of Perkins’s § 1983 complaint is
MODIFIED from “without prejudice” to “with prejudice as frivolous” pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i). See Marts v. Hines, 117 F.3d 1504, 1505-06 (5th
Cir. 1997) (en banc).
      The district court’s dismissal of Perkins’s complaint counts as a strike for
purposes of § 1915(g), as does this court’s dismissal of the instant appeal. See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Perkins is
WARNED that if he accumulates three strikes, he may not proceed IFP in any


                                        2
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                                 No. 12-41094

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).




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