                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 22, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-51262
                        Conference Calendar



BILL RUTHERFORD,

                                    Plaintiff-Appellant,

versus

BOARD OF PARDONS AND PAROLES,

                                    Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. W-02-CV-313
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Bill Rutherford, Texas prisoner # 275320, seeks permission

to proceed in forma pauperis (“IFP”) to appeal the dismissal of

his 42 U.S.C. § 1983 complaint, in which he alleged that his

constitutional rights were violated during and after his 1999

parole-revocation proceedings.   By filing the IFP motion,

Rutherford is challenging the district court’s certification

decision that his appeal was not taken in good faith.      See Baugh

v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.

     *
        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that this opinion should not be published and is not precedent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.
                           No. 02-51262
                                -2-

§ 1915(a)(3); FED. R. APP. P. 24(a)(5).

     Rutherford has not addressed the district court’s

determination that his claims are barred by Heck v. Humphrey, 512

U.S. 477 (1994).   Thus, any challenge to the dismissal of the

complaint on that basis is abandoned.     See Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1993).   Even if the argument were

preserved, it is without merit.   Rutherford’s complaint attacks

the validity of his parole revocation, and he has not shown that

the revocation of his parole has been set aside or otherwise

called into question.   As the district court determined, his

claims are barred by Heck and have no arguable legal merit.       See

Heck, 512 U.S. at 486-87; Jackson v. Vannoy, 49 F.3d 175, 177

(5th Cir. 1995).

     Rutherford has failed to identify a nonfrivolous issue for

appeal, and he has not shown that the district court erred in

certifying that an appeal would not be taken in good faith.       His

motion to proceed IFP is DENIED, and his appeal is DISMISSED as

frivolous.   See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

     The district court’s dismissal of his 42 U.S.C. § 1983

action for failure to state a claim and this court’s dismissal of

his appeal as frivolous each count as a “strike” under 28 U.S.C.

§ 1915(g).   See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.

1996).   Rutherford has received strikes in the following cases:

Rutherford v. Disciplinary Case, # 2001, 0264394, No. 02-11050,

Rutherford v. Board of Pardons and Paroles, No. 02-51259,
                           No. 02-51262
                                -3-

Rutherford v. Board of Pardons and Paroles, No. 02-51260,

Rutherford v. Board of Pardons and Paroles, No. 02-51268,

Rutherford v. Board of Pardons and Paroles, No. 02-51266, and

Rutherford v. Bell County Jail Administrator, No. 02-51261.

Rutherford has now accumulated over three strikes under 28 U.S.C.

§ 1915(g), and he may not proceed 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 28 U.S.C. § 1915(g).

     IFP MOTION DENIED; APPEAL DISMISSED; THREE-STRIKES BAR

IMPOSED.
