     Case: 10-30603 Document: 00511380231 Page: 1 Date Filed: 02/11/2011




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

                                                 FILED
                                                                          February 11, 2011
                                     No. 10-30603
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

FREDERIC LUBRON BIRGANS,

                                                   Plaintiff-Appellant

v.

STATE OF LOUISIANA; MICHAEL LINTON; JOHN PETERS; BRUCE
ROBINSON; JASON HONEMANN; JOHN NELSON; ZACH CROOKS; CHRIS
BALLARD, also known as Chris Basteard; METRO POLICE DEPARTMENT OF
MONROE,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 3:09-CV-926


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Frederic Lubron Birgans, Louisiana prisoner # 2613150, seeks leave to
proceed in forma pauperis (IFP) on appeal of the district court’s dismissal of his
civil action as frivolous and for failure to state a claim upon which relief can be
granted. By moving for leave to proceed IFP, Birgans is challenging the district
court’s certification that his appeal is not taken in good faith because it is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30603

frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3); F ED. R. A PP. P. 24(a)(5).
      Birgans argues that denying him leave to proceed IFP on appeal would
violate his due process rights, his right of access to the courts, and his right to
petition for the redress of grievances. He asserts that the district court erred by
dismissing his complaint and denying him leave to proceed IFP on appeal
without holding a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985). He contends that the defendants operated an illegal narcotics checkpoint
and that he was illegally abducted under color of law.
      There is no constitutional right to proceed in a civil action without paying
the proper filing fee; the ability to proceed IFP is a privilege that may be
extended or withdrawn. Norton v. Dimazana, 122 F.3d 286, 290 (5th Cir. 1997).
The district court was not required to hold a Spears hearing prior to dismissing
Birgans’s complaint. See Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir.
1991). While Birgans argues the merits of his claims by asserting that the
defendants operated an illegal narcotics checkpoint and illegally abducted him,
he does not address the reasoning behind the district court’s dismissal, that his
claims were barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). As
Birgans does not address the district court’s rationale for dismissing his 42
U.S.C. § 1983 action, he has waived any such challenge he could bring. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
      Birgans’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The IFP motion is denied, and the
appeal is dismissed. See Baugh, 117 F.3d at 202; 5 TH C IR. R. 42.2.
      Birgans is cautioned that the dismissal of this appeal as frivolous and the
district court’s dismissal of the complaint both count as strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). He
is cautioned that if he accumulates three strikes under § 1915(g), he will be

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                                 No. 10-30603

unable to 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 § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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